I beg to move amendment No. 39, page 2, leave out lines 12 and 13 and insert—
'(c) may be made only if a draft of the order has been—
(i) laid before Parliament; and
(ii) approved by a resolution of each House'.
Clause 3 is, if one includes the schedule attached to it, the longest part of the Bill. Together they run to some three and a half pages. On that ground alone, it is worth studying in some detail.
The clause is headed "Changes of terminology", which rather implies that these are technical matters, but I shall, I hope, show that it deals with substantive matters of importance. For instance, the schedule attached to the clause makes nearly 50 amendments to the European Communities Act 1972, the founding Act that has governed our relationship to the European Union ever since that date. Clearly, those are matters of substance.
One of the purposes of clause 3 and its schedule is to delete references to "European Community" and replace them with "European Union". That is not a technical change; it is a matter of substance, because the two are not the same. To remind the Committee, when we joined the Common Market, as it was then called, there were three treaties: the European Coal and Steel Community treaty signed in 1951; the European Atomic Energy Community treaty, usually known as EURATOM; and the European Economic Community treaty, usually abbreviated to the EEC, set up by the treaty of Rome in 1957. Collectively, those treaties formed what were known as the European Communities.
Since that time, the coal and steel treaty has expired and is no more. EURATOM still exists but is only of marginal significance—that is not to say that the European Union will not legislate on energy and atomic power; under the additional sections in the treaty of Lisbon, I anticipate that it will pass a great deal more legislation on that, but not through EURATOM. For the purposes of this debate, therefore, we can ignore that treaty.
A separate treaty on the EU, the Maastricht treaty, renamed the EEC the EC, and crucially, added two intergovernmental pillars, the first dealing with common foreign and security policy, and the second with justice and home affairs. That was a critical and innovative solution, and in my view and that of many of my persuasion, the intergovernmental method of co-operation is to be preferred. It cuts out the monopoly of initiative enjoyed by the European Commission, and does not come under the jurisdiction of the European Court. But it allows for extensive international co-ordination and co-operation in tackling matters of common interest.
Today, essentially, we have two treaties. We have the EC treaty, derived originally from the treaty of Rome, as then amended by the Single European Act, the Amsterdam treaty, the Nice treaty and so on. Separately, we have the EU treaty from Maastricht, covering the intergovernmental areas.
The current treaty abolishes the EC. Article 1 of the treaty states:
"The Union shall replace and succeed the European Community."
Crucially, however, the EU will also include those previous intergovernmental policy areas that I have described, such as the common foreign and security policy and parts of criminal justice and policing.
My right hon. Friend has made an important point. Is he saying that the treaty, and clause 3 in particular, abolishes what was the European Community? Was it not precisely on the claim that the European constitution abolished the former structures and replaced them with a new one that the Government based their promise of a referendum? They said that this treaty did not do that, and that therefore we did not need a referendum. Now my right hon. Friend is saying that the treaty does do that—in which case, surely, the Government's promise of a referendum would have to be reinstated even if we believed in their rather bogus excuse for getting out of it.
My right hon. Friend is spot on. This treaty does exactly the same as the constitutional treaty: it founds a Union that encapsulates and incorporates all the EC and EU treaties, and indeed establishes a single legal personality for the purpose.
My right hon. Friend may not have heard some remarks I made during the last debate about the mandate which—as he knows very well, because he is a fellow member of the European Scrutiny Committee—was brought in through the back door, in deceitful circumstances, on
Order. The right hon. Gentleman is being tempted to extend his remarks rather more widely than the amendment allows. It is quite narrowly drafted.
I am well aware of the narrowness of the amendment, Sir Michael, but I wish to put it in the context of what is happening to the EC, as opposed to the EU. As you will see, a large part of clause 3 is concerned with replacing the EC with the EU. I agree with my hon. Friend Mr. Cash that the two are not the same. Clause 3 attempts something of a three-card trick, making what are apparently name changes but, in fact, changing the substance. The EU will not only replace the EC but include the formerly intergovernmental aspects of common foreign and security policy, criminal justice and policing. Moreover, subsections (4) and (5), which are the subject of my amendment, give the Secretary of State or the Treasury power to
"make other amendments of Acts or instruments".
That is quite a wide power. The amendments are not defined or limited, and the power obviously includes power to amend primary and secondary legislation. The amendments must "reflect changes in terminology", but are not limited to such changes.
We are not simply dealing with changes of name. Just as the change from EC to EU is a matter of substance, other matters of terminology could and, in my view, will entail substantive and material changes.
The hon. Gentleman is right. There has been a baffling series of name changes, all of them in the wrong direction. In the Convention on the Future of Europe, I—along with some other delegates—suggested yet another name change, but a change in the right direction. We proposed a Europe of democracies. We submitted a minority report to give effect to such a concept, which is essentially intergovernmental. I agree with the hon. Gentleman that names and terms are important. Whichever direction we take, it is vital that the House has the right to scrutinise and authorise the changes when they are made. I commend my rather modest amendment, which would ensure that so-called terminological changes are made by affirmative resolution, giving both Houses an express decision, replacing the negative resolution procedure whereby the changes are made unless they are emphatically blocked.
I am genuinely trying to understand the right hon. Gentleman. Is he arguing that if we do not agree to his amendments to schedule 1 and to some of the name changes, the intergovernmental nature of some of the policy areas that the Government currently feel are protected will lose that protection because we are merging the Community into the Union, so making those policy areas vulnerable? Is that his key point?
No, that is not my argument. The so-called innocuous change from EC to EU is not simply a change of terminology, because the EU incorporates not just the EC, but intergovernmental policy areas such as common foreign and security policy and criminal justice. In the same way, the other changes that the Government may propose to give effect to the treaty in existing UK legislation will also encompass matters of substance and are not simply matters of terminology.
To demonstrate that, I need to pick up a number of themes that have emerged in the debates so far. The first point is that the treaty is almost the same as the European constitution, which failed at the hands of the French and Dutch electorates. That observation is now not seriously contested by Ministers. There are a few apologists from the Labour Back Benches who occasionally pretend that they are two different treaties but the Select Committee reports are decisive on this. When the Prime Minister says that the constitutional approach has been abandoned, he must know that that refers only to the form of the treaties rather than to their substance. The constitutional treaty brought the two treaties into a single document; the present one simply amends the two existing treaties without formally merging them. In substance and legal effect, however, the two treaties are the same.
My right hon. Friend is making the case that the use of the word "Union" and the change in terminology have greater importance than they are given. At the same time, however, he is trying to make the case that it is not of great importance to cease to have a constitution and to have instead a treaty. I should have thought that he would agree that to have a treaty between sovereign nations rather than a constitution is a fundamental difference, even though I agree that the Government's promise on a referendum certainly did not contain that caveat.
I judge treaties and constitutions by their substance and effect. It is now indisputable that the substance of the treaty of Lisbon is in almost all cases the same as that of the constitutional treaty. That was the conclusion of the European Scrutiny Committee and that of the Foreign Affairs Committee, in so far as it looked into the foreign policy implications of the treaty. That is good enough for me. It may be a coincidence that I serve on both of those Committees, but I did support their conclusions; both, of course, have Labour Chairmen and majorities. Therefore, it is beyond dispute that they are the same document in legal effect.
It follows from that that the many amendments that the Government tabled to the constitutional treaty during the Convention on the Future of Europe also apply to the treaty of Lisbon. As most of their amendments failed, it also follows that many unamended parts of the treaty are not to the Government's liking, and also that any changes that the Government might seek to make to existing United Kingdom laws by using this part of the Bill are not to their liking either as they were the subject of failed British Government amendments. That is an additional reason for them to be closely scrutinised by the Committee on a case-by-case basis according to the affirmative procedure.
My next theme is that this treaty is not a reform treaty, despite its earlier name. The Laeken declaration of December 2001 set in train a reform process. It recognised that decision making in the EU was remote, that the whole procedure had lost the confidence of the public, that the treaties were too complex and not democratic enough, and that the EU was interfering too minutely in the lives of ordinary citizens. Instead of following that reform instruction, the Convention on the Future of Europe consolidated more powers in the very institutions that were the cause of the disillusionment in the first place, and where reforming amendments were tabled, such as to the EU budget, they were ignored. It follows from that that the UK Bills to be amended in accordance with this clause will not reflect the reform process that the British Government supported. It is also worth noting that much of the UK legislation to be amended was passed some years ago when genuine reform of the EU was in prospect. Therefore, when the House passed provisions in those Bills referring to the European Union, it might have confidently expected that the relevant sections of the treaty concerned would be reformed, instead of which reform has been ignored and powers have been consolidated at the EU.
My next theme is, therefore, the failure of subsidiarity. Not only has the reform process taken more powers upwards, but the subsidiarity principle is not working. That principle dictates that the EU can act only if the objective or policy cannot be achieved adequately at national level. That has been in treaty law since 1993, but it has not been an effective check on the EU's activities. Examples have been given in previous debates of how even the exchange of best practice at EU level has been thought sufficient to justify EU action. Nor has the European Court of Justice been an effective check on subsidiarity. How could it be, as it is itself an EU institution? It is part of the project, and under the treaty of Lisbon matters will get worse as it will be required by treaty law to practise "mutual sincere cooperation" with the other institutions of the EU. Therefore, the subsidiarity check for national Parliaments, which is supposedly a new feature of the treaty of Lisbon, is something of a sham.
Does my right hon. Friend accept that the extension of exclusive or shared competences turns the whole question of subsidiarity inside out, because national Parliaments will not be able to legislate, by statutory instrument or otherwise, in the spheres in which those competences are being granted, and that this is therefore just a monumental con trick?
My hon. Friend is right to say that if the treaty is ratified, subsidiarity will be overtaken by the new division of powers in the treaty. One of the reasons why the Lisbon treaty is a constitutional treaty is because it attempts a division of powers between member states and the EU institutions—that is inescapably a constitutional matter. Such a provision is found in the United States constitution, which enumerates states' rights as against those of the federal Government. The Lisbon treaty attempts to do exactly the same, in a way that is almost entirely in the EU's favour. The definition of "exclusive competence"—that list is longer—will completely prevent any legislation by member states in areas where it applies. Even the definition of a "shared competence" will prevent member states from legislating if the EU moves into the area where it applies. It is a funny definition of sharing, which in practice will simply allow member states a residual competence. The arrangement will overwhelm any attempt to enforce the subsidiarity principle.
My right hon. Friend is making a powerful case. In his long experience of European matters, is he aware of any area in which the EU has evacuated a shared competence and handed it back to member states?
The Second Deputy Chairman:
Order. Before the right hon. Gentleman responds, may I say to him that he is going wide of his quite tightly drawn amendment? I do not intend to stop him, but I trust that if he is making points that should be made during the clause stand part debate, he will not seek to make them again then.
I can directly relate this matter to the amendment, Sir Michael, because the amendments permitted under subsections (4) and (5) will reflect the new division of powers and sharing of competences in the treaty. My hon. Friend Mr. Clappison was right: although the Laeken declaration suggested that some powers might be returned to member states, I can think of no example of where that has happened. Things have gone entirely in the opposite direction—the ratchet has operated upwards and never downwards—and it therefore follows that the amendments to "Acts or instruments" will reflect the new division of powers. We know that this House disapproves of that division; it was stated many times in debates leading up to the treaty that even the British Government were alarmed by the degree to which the powers and responsibilities were moving upwards and, in no sense, downwards.
We must also consider the general transfer of powers from member states to the EU illustrated in the new policy areas such as energy provision. That is a new competence provided for in the treaty. Given that it will be decided by qualified majority voting, it too is a transfer of authority in the wrong direction. We must also take into account the advances into criminal justice and policing, and immigration and asylum, and the new areas to be decided by QMV. I believe the Government have admitted to 51 such areas, which is a record; the Single European Act extended QMV into 12 new areas, but 51 is by far the most extensive advance of QMV in any treaty.
To give an example of where that can act against the interests of this House and this country, may I remind the Committee of the artist's resale right, which was granted in a directive some two years ago, against the British Government's wishes? It gives artists a percentage of the sale price of a work when it is resold, and has been a feature of French law since the 1920s. The British Government opposed it because they understood that it would drive business out of the United Kingdom to jurisdictions such as America where no such levy applies, and because the British art market, which is by far the biggest in Europe, stood to lose the most. Almost 50,000 people are employed in the British art market, and if it were eroded or business were to move to other art markets in the rest of the world, it would be a loss not just to Britain but to Europe. That was why the Government rightly opposed and voted against the directive. A recent study has shown that the fears raised at the time have been confirmed: the British art market has been damaged, and artists have not benefited. In any case, only the more successful artists stood to gain anything from the levy.
That is an example of majority voting under existing treaties being detrimental to the interests of an important part of British business. The problem was seen by the House and the Government, but they could do nothing about it. The situation can only get worse under the treaty, because majority voting is to be extended to 51 new matters and will become the norm.
Amendments that may be made under the powers in the clause will include provisions reflecting the new reality of majority voting as contained in the treaty. I shall give examples of changes that may be in Ministers' minds. A clue comes from the European Union Bill of 2005, which had a Second Reading and would have given effect to the constitutional treaty but was abandoned when the French and Dutch electorates voted against the constitution.
Interestingly, that Bill contained a similar power to amend existing UK statutes and instruments to give effect to the constitution. In all major respects, the constitution was exactly the same as the treaty currently before the House, so the Bill's provisions are still relevant. It took a different approach from the present Bill: instead of giving Ministers a general power to make amendments to Acts or instruments, part 2 of schedule 2 to the Bill named specifically a great many statutes to which modifications and amendments would be required. Presumably—I hope that the Minister will confirm this—the Government still have it in mind to make the modifications listed. However, instead of setting them out in the schedule to the current Bill, they seek to give themselves a general amending power. That is a regressive move, which will further erode the House's ability to scrutinise the changes.
The list of Acts to which the 2005 Bill stated that modifications were required is interesting, and backs up the observations that I have made about the existing treaties. For instance, the Civil Jurisdiction and Judgments Act 1982 is listed as requiring the deletion of a reference to article 68 of the existing treaty and the insertion of a reference to an article in the constitutional treaty. Exactly the same modification is presumably required, except that not an article in the constitutional treaty but an article in the treaty of Lisbon will be required.
This is not simply a matter of terminology; it is a matter of substance. The reference to article 68 in the 1982 Act limits the jurisdiction of the European Court of Justice, whereas the replacement article in the existing treaty does things differently, as it has been substantially amended. We are not simply talking about a technical change; we are talking about a matter of substance, and I hope that the Minister can confirm that when he replies to the debate.
Amendments to the Government of Wales Act 1998 involve the deletion of the word "regulations" and the substitution of the phrase "any order, rules, regulations or scheme". Again, that is not simply a matter of terminology; it is a matter of substance.
I shall give another example. The Export Control Act 2002 was supposed to be modified. That is important because it gives the Government the power to control exports or the transfer of technology to other countries, possibly in line with the requirements of the common foreign and security policy. So the Act would need to be amended to reflect the treaty of Lisbon. But—this is the point—the common foreign and security policy provisions in the treaty of Lisbon are substantially different and far greater in scope and power than those under the existing treaties. Again, this is not simply a technical change of terminology.
Another example is the Criminal Justice Act 2003. Again, the Act refers to articles 31 and 32 of the existing treaties, in which criminal justice is treated as an intergovernmental matter, whereas under the present treaty, as I have explained, it becomes a matter for the European Court of Justice and for qualified majority voting. In other words, that pillar of the existing European Union is collapsed and replaced by the normal Community method of decision making. So replacing those articles with the new articles in the existing treaty is not, again, a matter of terminology; it is a matter of substance.
Is not the change of substance to the common area of justice and security that my right hon. Friend has rightly identified as far away as possible from the original conception of Governments meeting to co-operate on judicial, home affairs and criminal justice matters? We are now to have a common area—with harmonised rules, sometimes common criminal offences and common Eurojust and Europol systems—that is as far away from co-operation as it is possible to be.
I agree with my hon. Friend, and the reason why criminal justice and policing were treated intergovernmentally is precisely that they are very important matters that the public feel must be dealt with in a Parliament to which they relate and, crucially, that can be changed after a general election if there is a change of Government. Indeed, I would go further: we obey the law because these are our laws in a sense, and they can be enacted, amended or repealed by our Parliament. Once they become enacted in a different jurisdiction that we do not control, that precious democratic link is fractured, with very serious consequences.
Does my right hon. Friend agree that a similar example relating to statutory instruments and the manner in which they can be introduced came up a couple of years ago in the Legislative and Regulatory Reform Bill, which has since been enacted? My proposal that Parliament assert its supremacy over the European Communities Act 1972 is the only way that my right hon. Friend's argument can be put into effect, because the reality is that, whether we are talking about Acts or statutory instruments, the decisions will be taken outside Parliament, unless the House asserts its right to legislate on behalf of the voters of this country.
I agree with my hon. Friend, and I remember voting for his very good amendment to the Bill that he mentions. It follows from what he says that he would agree that when the Criminal Justice Act 2003 was enacted, and reference was made to articles 31 and 34 of the existing treaty, Parliament did not think that instead of the treaties, there would one day be the treaty of Lisbon, which would take criminal justice and policing out of the intergovernmental pillar and collapse it, and instead make the issues subject to the mainstream Community method, with all that that implies.
I hope that I have demonstrated that the Bill will give the Executive—specifically, the Secretary of State or the Treasury—a wide power to make amendments. Those amendments can cover primary, as well as secondary, legislation. I think it wrong in principle that the negative procedure should be used to amend primary legislation, unless there is good reason for doing so. I have shown that we are talking about matters of substance. I gave a number of examples, from a previous Act, of provisions that would have incorporated the constitutional treaty, if it had gone ahead. Those examples must endure as proposals that the Government identified as requiring amendment. I have shown that the Bill does not simply make technical adjustments; we are dealing with significant changes that touch on the powers of the European Court of Justice, the scope of, and powers under, the common foreign and security policy, and the collapse of the intergovernmental pillar governing criminal justice. Those are material changes, and they affect the powers of the House.
In conclusion, I repeat that the amendment would make a modest change. It is not a wrecking amendment. If it is made, it does not destroy, or even modify, the treaty; our other amendments do that. It simply concerns an internal matter to do with the powers of the House. I therefore commend it to hon. Members in all parts of the House.
The right hon. Gentleman is absolutely right that "European Communities" is different from "European Union", and that is partly what the treaty of Lisbon is about. He made an interesting speech but, with due respect, most of it was wholly irrelevant. I suggest that he has been misled by the maladroit wording of clause 3.
No, it is not; I agree with the right hon. Gentleman. I am referring to the clause heading on line 15 of page 1, which is "Changes of terminology". It should say "Changes of definition and terminology". I will return to that in a moment. Also, subsection (3), on lines 4 and 5 of page 2, says:
That should read something like, "The table in the schedule to this Act sets out substitutions required to reflect the consequences of the commencement of the treaty of Lisbon." That returns us to one of the points made by the right hon. Gentleman with which I agree, which is that "European Communities" does not mean the same as "European Union".
Amendment No. 39 would amend clause 3(5), which sets out how the powers granted under subsection (4) will be exercised. Those powers are not, as the right hon. Gentleman suggested, "changes of definition". Subsection (1) contains the phrase:
"In section 1(2) of the European Communities Act 1972 (interpretation) before the definition of 'the Communities' insert—".
The key word is "definition", which is why I said that the clause's title should be "Changes of definition and terminology".
Amendment No. 39 concerns subsection (4), as applied by subsection (5), whereas subsection (1) is a stand-alone provision that amends section 1(2) of the European Communities Act 1972. Is the hon. Gentleman going to relate the questions about subsections (3) and (4) to a separate debate, or does he want to drift back to subsection (1)? Perhaps he has become confused.
As I have said, subsection (1) uses the word "definition", whereas subsection (4) refers to
"changes in terminology or numbering".
The power granted under subsection (4) relates to changes in terminology or numbering; it does not relate to definitions. For the particular benefit of the hon. Member for Stone, that is why I have said three times that the title of clause 3 is not helpful—I used the adjective "maladroit"—and drawn attention to the use of the word "definition" in subsection (1).
I will make some progress. I have urged patience on the hon. Gentleman, and I continue to do so.
Subsection (4) uses the word "terminology". Mr. Heathcoat-Amory seemed to believe that subsection (4) included the word "definition" rather than the word "terminology". If the word "definition" were used in subsection (4) instead of the word "terminology", I would support his amendment. However, if the word "definition" had been used instead of the word "terminology", the Government would not have drafted subsection (5), which the right hon. Gentleman wants to amend, in its current form.
I will give way to the hon. Gentleman, but I urge patience.
I realise that amendment No. 39 relates to subsection (5), but it is important to discuss subsection (4), because subsection (5) concerns the exercise of powers granted under subsection (4). The second half qualifies the first half of subsection (4). The first half gives power to the Secretary of State or the Treasury; the second half specifies that over which the power may be exercised, just as subsection (5) specifies the way in which the power may be exercised. One has to read clause 3(4) completely to see that the second half—
"to reflect changes in terminology or numbering arising out of the Treaty of Lisbon"— in a sense qualifies the first.
This is a complex matter, and I am not trying to disparage the hon. Gentleman's remarks in any way. He is trying to draw a distinction between definitions and terminology. If he looks at the schedule, he will see tables with "Provision of the European Communities Act 1972" at the head of one column, "Existing expression" at the head of the next and "Substituted expression" at the head of the third. There are three pages of substituted expressions.
To take one, crucial example, the words "Enforceable Community right" are turned into "Enforceable EU right". That is a substantive change, made by the substitution of expression. It is not simply a matter of terminology as such; there is a substantive effect. If the existing expression had been left, it would not be possible to implement the merger of the existing treaties.
I apologise to the hon. Gentleman; clearly, I have not yet made myself crystal clear to him or perhaps the Committee. On at least two occasions in this speech, I have agreed that, as patiently set out by the right hon. Member for Wells, it is a substantive change to say that "European Communities" does not mean the same as "European Union". Today in the House we are discussing primary legislation, including whether we should vote that the schedule, which makes substantive changes, as the hon. Member for Stone has pointed out, should be in the Bill or not. The schedule is a substantive change, and I say to the hon. Member for Stone and other Members that that is precisely why at the beginning I described the heading of clause 3 as misleading to the right hon. Member for Wells and others because of its maladroit wording—it should say "Changes of definition and terminology".
Not only that, but I said that clause 3(3), which brings in the schedule, was badly worded because it contains the word "terminology", which should be left out. Perhaps the hon. Member for Stone missed that; I shall repeat what I said for his benefit. I said that clause 3(3) should read, "The Table in the Schedule to this Act sets out substitutions required to reflect the consequences of the commencement of the Treaty of Lisbon." That leaves out the misleading word "terminology", which should not have been included because it refers to the schedule, which is substantive because "European Union" does not mean the same as "European Communities".
I am glad that the hon. Gentleman ended on that note, because I have a feeling that although this discussion is about as turgid as it can get, it is important. The fact is that changing the expressions in that way has a different legal effect. Effectively, when we now refer to legal obligations there is a new kind of legal situation that is much more integrating than before and moves away, as my right hon. Friend Mr. Heathcoat-Amory said, from intergovernmental to Union parameters. It therefore has—and this is, in a nutshell, why I am pursuing the issue—highly significant constitutional implications. My point is simple: the changes have constitutional implications, and because of their scale they add up to another reason for holding a referendum.
I agree that clause 3(3) has constitutional implications, but clause 3(4) does not. Subsection (4) uses the word "terminology" correctly, but subsection (3) does not. Subsection (4), which is absolutely germane to amendment No. 39, does not make a constitutional change—it says that substitutions should
"reflect changes in terminology or numbering".
That is clearly an incidental provision, not a substantive change.
I rise to discuss this issue for two reasons: I do not agree with the amendment, but I agree with the fact that we are having the debate. The House should be having precisely this kind of debate on every aspect of the Bill, and its rather arcane nature—I think, Sir Michael, that your own interventions have shown that it is quite difficult to know exactly when we are or are not in order—does not make it any less important. The fact that we have enough time to talk about this underlines how little time we have had to talk about even more important issues. The argument that we are having is a kind of surrogate for the arguments that we should have had if the timetabling system had enabled us to do so.
I do not think that my right hon. Friend Mr. Heathcoat-Amory is right in his concerns, but it is perfectly reasonable to debate the amendment in order to underline them. I do not think that the operation of what we are discussing enacts changes that are more serious than those that are part of the decision to accept the treaty of Lisbon. The treaty creates the terminological change from the European Communities to the European Union. For me, that is an admirable change that enables us to move forward rather than backwards, and I am pleased about that. However, it has come to something when we have to discuss an amendment of this kind in order to be able to talk about the changes that we would otherwise have been able to talk about in normal line-by-line discussion of the treaty. This is the first time that we have had time to discuss this very important treaty in such detail. It is clear, given those present in the Chamber, that we are likely to be able to discuss everything before us in the time that we have available, which is unique.
For those of us for whom there is no terror in this remarkably valuable treaty, the House's inability to debate and argue in order to show that it is much less difficult than how some would characterise it has proved to be a great loss. As we proceed, it has been noticeable that even the residual concerns that one might have had have evaporated when properly debated. I have been much cheered by the fact that at the end of many debates I have found that, in relation to certain problems that I had, the argument for the treaty has clearly been made. If one does not have time to have the argument, one cannot have it—that is why it is important that we have this discussion.
I say to my right hon. Friend the Member for Wells that it is true that we have to move forward, and it is true that we have qualified majority voting. He has gone from that to saying that we must have a rather more complex way to deal with the terminological changes involved. That is a mistaken argument, as is the argument against qualified majority voting. Speaking as one who has worked under that system, and the veto system, in the European Union, I always found it much easier to get my own way under QMV. Under the veto system, one is using what might be called an atomic bomb on every occasion, while under QMV, one is normally able to win if the issue is important.
My right hon. Friend chose an example where Britain was entirely in the wrong, and I am pleased that at long last artists have a right that they should have had before. It is quite unacceptable that great works that are recognised as such later in their lifetime should be sold for huge and inflated amounts while the artist receives nothing. I have always thought that, and the fact that other nations outside the EU have not recognised it seems a pity. I am pleased that we lost that particular battle, but I shall come on to say why I think that QMV works.
On a point of information, the artist will not receive the money because the work of art will be sold in another jurisdiction where the levy does not apply. Not only will the artist not get the money, but his gallery, the auctioneer, and all the restorers, packers, clerks and framers will lose business. The Government were right. It was a well-meaning measure, but it would not have been effective. That was shown conclusively by the independent study sponsored by the Antiques Trade Gazette, which I now take pleasure in handing to my right hon. Friend.
I take much pleasure in receiving it. I think that I already have a copy of it, and the arguments in it take one side of the matter.
I have a curiously old-fashioned view, which is that if one wants to change something, one changes it and then tries to convince other people. My right hon. Friend is really arguing that we should never do anything in the United Kingdom, let alone the European Union, to which one cannot get everyone else to agree in the first place. I cannot go along with that because as an environmentalist, I am deeply concerned that the EU should do a range of things that the rest of the world is not doing. We have to set an example, and show that we are prepared to do something.
I disagree with my right hon. Friend on the issue in question, but even if he is right, he cannot argue that that is a reason for changing the clause through the amendment. The two do not hang together. The only reason I have spoken on it was that I thought it worthwhile maintaining that not everyone agreed with his view on QMV or on the issue that he raised.
The problem with the understanding expressed on QMV is that it fails to face the issue of what it means to co-operate. If co-operation is to be effective, when one shows willingness to do so, either under QMV or where there is a veto involved, it must stand so that it is something upon which others can depend. If it cannot stand, and we are merely considering a matter of part-time occasional agreement between Governments, there is no way in which the great efforts that we have to make in the EU can be made. Mrs. Thatcher understood that perfectly well when she insisted that the Single European Act, which changed more than anything else we have talked about, should not be subject to changes of Government or changes of attitude in Parliament.
I am grateful to my right hon. Friend, who is eloquent and interesting, as always. He said that he found it easier to get his way through qualified majority voting than when he had a veto. Would he give us an example of an area of policy where he failed to get his way even though he had the veto?
Against the background of qualified majority voting, everybody seeks not to push things that matter seriously to someone else because they do not want to be pushed in the opposite direction in some future discussion. A collegiate result, which is very effective, is therefore achieved. The trouble with vetoing is that one can rarely use it if one is to be successful in the collegiate attitude, and, in my experience, one gets one's way less. My right hon. Friend may have other experiences, but it is what I believe.
My right hon. Friend the Member for Wells said that QMV for energy matters means that we could tie ourselves to things that we want to change after the election. He is right. However, if we were to do as he suggests, we could not make long-term energy agreements in the European Union because we would have to allow 27 countries to sign up to agreements only after they had held general elections. Or do the British believe that somehow their Parliament has a different role to play? I would find that a difficult argument to present.
Does my right hon. Friend seriously advance the proposition that co-operation on energy requires the treaty? The United Kingdom is party to thousands of policy agreements with other countries and organisations throughout the world on the basis of unanimity. Does he believe that we require the treaty, with QMV, to do what we have done for scores of years under existing procedures?
No, not to do what we have done for scores of years but to achieve something more effective. We have not dealt with matters effectively and we therefore need a mechanism whereby we can do that over a long period. The point about the European Union is that it enables us to work with other colleagues in a context that people understand to be one in which we make decisions for the long term in a manner that enables us to give and take. My problem with my right hon. Friend's argument and that of all those who dislike the European Union or the treaty of Lisbon is that it fails to understand that the institutions that we need to deal with a globalised world are not the same institutions that we have used previously.
The great thing about the European Union is that it has grasped the fact that the countries of Europe must decide either that they will continue to play the game by the old method, and thereby remain outwith the genuine arguments, or that they will act together so that they are at the heart of major global decisions. Acting together demands the sort of institutional changes for which the treaty of Lisbon provides.
The wording of clause 3 is maladroit—the Government are, of course, known for their maladroitness in writing anything. Indeed, one of the reasons that I feel so passionately about what the Government have done to the House is that past Governments known for maladroitness were put right by the long period of debate and discussion in Committee. However, the Government, like a secretary who does not want a dictionary in case it proves that she cannot spell, have destroyed the dictionary. No one is therefore allowed to argue with the Government in a detailed way.
Although normally I would have allowed my right hon. Friend to continue with the view that he has, in his mind rightly, held for many years—I have always held the opposite view—on this occasion I thought it right to use the issue to show the House why a line-by-line debate on the treaty was not only what we were promised, but what would help the Government. Such a debate would enable them both to see whether things were less adroitly presented than they might wish them to be and—I am sure that the Minister will do this in his summing up—to promise the House that they would treat the provisions as though they had been properly written. Indeed, the Minister might even think of a slight amendment in the wording, but we shall see whether that is so.
Lastly, I am concerned about the proposed mechanism, for this reason. If I am right that we are talking about a matter of nomenclature—Rob Marris was right to say that it is perfectly possible to argue that the nomenclature reflects a big change in the treaty—one would certainly not want to make the change proposed in the amendment, because that would give people a much greater opportunity to stray beyond mere nomenclature. Were we to agree to the amendment, that would suggest that there was in fact an area in which the Government could stretch what they could do through such relatively easy mechanisms beyond that which would be reasonable.
I am therefore opposing the amendment that my right hon. Friend the Member for Wells has moved, partly—if I may put it so presumptuously—for his own good. Were he to gain what he seeks, he would be giving future Governments an excuse to move beyond the mere nomenclature to something greater.
I hope that my right hon. Friend has not completely misunderstood the reason for my amendment. The reason is precisely to give the House a check, to ensure that in making such changes in future the Government were not, under the cover of making name changes, in fact making substantive changes. Surely he should join me in enhancing the power of the House to ensure adequate scrutiny of the Executive in implementing clause 3.
But in my view the Government would not, in the relevant circumstances, have the power under the Bill to make changes other than those to mere nomenclature. I am concerned that placing before the House a system that my right hon. Friend knows to be limited in effect would not only encourage the widest interpretation, rather than the most narrow, but give people a belief that he had achieved something that, frankly, he would not have achieved. Neither of those are very suitable results; therefore I want neither of them.
However, my right hon. Friend is right that the treaty makes some substantial changes. I would merely argue that those changes add considerably to the power of the United Kingdom and give us greater influence in the world, which makes it possible for us to play a part that we would not be able to play otherwise. I have confidence enough in the United Kingdom not to be worried that, working with colleagues in the rest of Europe, we cannot get our own way most of the time.
It is a delight to follow Mr. Gummer. I have been enjoying his contributions to these debates very much, particularly the one last Wednesday, when he gave us a tour de force on the environment. I was also intrigued by the head-to-head exchange between Rob Marris and Mr. Heathcoat-Amory. The right hon. Gentleman has taken a keen interest in European affairs over many years and outlined in detail his concerns about clause 3.
I intend to restrict my comments to the amendment, which I hope will find favour. Given that I take a different view on Europe from that of the right hon. Gentleman, it will perhaps not surprise hon. Members to learn that I disagree with much of what he said, particularly about the huge impact that the proposed change in the wording could have. However, I am able to agree somewhat with the spirit of his amendment. My party is in favour of proper scrutiny in the House, which is why, during our deliberations on the programme motion, the Liberal Democrats joined the Conservatives to argue that more time be given for the House to discuss these matters in more detail.
I believe that the changes proposed in the orders will be very technical. None the less, the amendment proposes the sensible change of moving from the negative to the affirmative resolution procedure. That would not be a huge burden on the House. Indeed, if the changes were purely technical, as I expect they would be, one could imagine the Statutory Instrument Committee dealing with them quite briefly—although perhaps not if some of the hon. Members present today were selected to serve on it. It is not as though the amendment were asking for an Act of Parliament to be passed whenever a change in terminology was proposed.
I have sat on many Statutory Instrument Committees discussing changes of an incredibly technical nature involving the change of certain words, and I do not think it would be a great problem to deal with such matters under the affirmative resolution procedure. It keeps Ministers on their toes more and ensures proper scrutiny. Given the lack of time that we have for the Committee stage of the Bill, it would be another way of ensuring that additional scrutiny could be undertaken. I therefore welcome the perhaps rare opportunity to support an amendment tabled by the right hon. Member for Wells, as it would enable us to have greater power to scrutinise various aspects of the Bill.
I want to take a close look at the impact of the extremely good amendment in relation to the way in which we legislate in the House. In particular, I want to focus on subsections (4) and (5), and to try to draw out the fact that I believe there to be somewhat more at the heart of this than seems to have been apparent so far.
I have alluded many times to the manner in which the whole of the legislation that leads us to this specific focus arose. It arose from a mandate. The proper discussion with the European Scrutiny Committee that usually takes place in these treaty-making arrangements did not take place this time, because the House and the European Scrutiny Committee were bounced when the German presidency put together a mandate, at extremely short notice, in order to wriggle out of the mess that the original constitutional treaty had got into.
I shall not trespass on your patience, Sir Michael, with respect to the relevance to the amendment of what I am going to say, but I want to make this point clearly. A vast amount of European legislation is made through statutory instruments—far more than Members of the House appreciate, and far more than is made by Acts of Parliament. Contrary to what the Liberal Democrat spokesman said just now, the powers that are given to enable those statutory instruments to be made in respect of European legislation have the character of Henry VIII clauses, because there is a power to use the statutory instrument procedure to modify Acts of Parliament under section 2 of the European Communities Act 1972. In other words, this is an explosive provision, because within it lies the power to generate amendments that could lead to amendments of Acts of Parliament. I think that the Minister, who I am sure has been properly briefed, will know exactly what I am saying. This is a huge Trojan horse and a very substantial incubus within which Acts of Parliament will be affected and amended.
This mandate is used to describe negotiations between member states' Governments with a view to amending those treaties—that is, all the existing treaties. As we have already heard, the transmutation of arrangements under the European Communities and their conversion into the Union is much bigger than it might seem at first sight. The power to make statutory instruments to modify existing Acts of Parliament in pursuance of sections 2 and 3 of the European Communities Act 1972 is mutually interdependent with the change that took place, as I shall explain.
The mandate suggests an amending treaty that would amend, but not replace, the EU and EC treaties. The latter treaty would be renamed the treaty on the functioning of the Union, as we discovered in previous debates, but the word "Community" would be replaced by the word "Union", with the Union having a single legal personality and replacing and succeeding the Community. That is one of the reasons, as I explained previously to Rob Marris, why the treaty has a constitutional character. By replacing and succeeding the Community, as my right hon. Friend Mr. Heathcoat-Amory explained—I backed him up in my interventions—the pillars get changed, so there is a constitutional change. It is directly relevant to our discussion about affirmative or negative resolutions and directly relevant to the way in which the House legislates, as I shall explain more fully later.
The mandate argues that the amended treaties
"would not have a constitutional character".
However, the European Scrutiny Committee made the position absolutely clear through its expert legal adviser, to whom I pay tribute again for his work. For, as the Committee went on to say, "this could be misleading". If the effect of the changes is to bring about the collapse of the pillars, which we know it is, with established doctrines of Community law such as direct effect, exclusive external competence and a full jurisdiction for the European Court of Justice, the change is, as I said in previous debates over the past few weeks, substantial and constitutional. In other words, there is a substantial equivalence between the original constitution and the one that we are now debating, which would bring what is done intergovernmentally within the more supranational framework of the Community method. That poses an enormous constitutional question. It may sound difficult; it may even sound boring; it may be turgid; it may be arcane, as my right hon. Friend Mr. Gummer mentioned; but it is significant.
I listened with fascination to the way in which the Government and Labour Members attempt to elide and slide over those questions. The reason for having a referendum is contained in this whole body of law that I have described, this Community method, this fundamental constitutional change in how we are governed—and its direct impact on the daily lives of our constituents who vote for policies and laws in general elections. Those people will find—and have already found by virtue of previous European legislation—that they are effectively excluded from the democratic process because they cannot change it subsequently.
For all that to be done by a statutory instrument is proof of the significance of what I am saying. People outside will not believe that legislation can be properly discussed in respect of the tens of thousands of statutory instruments or amended in respect of Acts of Parliament. If a statutory instrument has the power to modify Acts of Parliament as well, I am sure you would understand me, Sir Michael, if I said that the incubus whereby a statutory instrument effectively becomes an Act of Parliament is of immense constitutional significance. [Interruption.] I hear the hon. Member for Wolverhampton, South-West saying that it is not. I am always more than happy to give way and I would be delighted to hear his reasoning. When he hears what I have to say later, perhaps he will reflect on it, but I am happy to give way to him now.
I am grateful to the hon. Gentleman for offering to give way before I had even indicated that it might be convenient. What the hon. Gentleman is doing is reading into clause 3(4) the word "modify". I recognise that the noun "amendments" is also there, but as I said earlier, that is qualified by the second half of the provision, which continues with the words
"to reflect changes in terminology or numbering arising out of the Treaty of Lisbon".
The hon. Gentleman talks about the surprise of members of the public, but I believe that they would be surprised if, when a provision needs renumbering, we have to have a debate on the Floor of the House to provide for it, which is what would happen if the amendment were passed.
I am extremely glad that the hon. Gentleman has walked into a trap, which I had not intended to set for him, but which he has created for himself. I was not referring to modification by reference to the Bill, but to modification that is inherent in the manner in which statutory instruments are made under section 2 of the European Communities Act 1972, as I shall explain.
Let me quote from Bradley and Ewing, one of the greatest constitutional authorities on this issue:
"However undesirable this might appear in principle, Parliament frequently delegates to ministers power to amend Acts of Parliament."
We need to bear in mind the fact that the European Communities Act 1972 sets these provisions, which emerged from the application of sections 2 and 3 of the 1972 Act, in concrete through the acquis communautaire and also provides for the ultimate arbiter—the papal infallibility of the European Union, we might say—the European Court of Justice, which is effectively unchallengeable. On the face of it and subject only to my new clause 9, which I hope the House will vote on in a couple of days' time, this provision will not be capable of repeal.
The great constitutional authorities say first that this might appear undesirable, but they go on to say:
"The term 'Henry VIII clause' is given to such provisions and numerous examples may be found in the Scotland Act 1998" and often in other such constitutional measures—and we should note that it also applies to
"the Government of Wales Act 1998".
"When the power in a new Act is restricted to amending earlier Acts that are directly affected by the new reforms, the power is less objectionable than when it extends to amending the very Act that contains the power."
That is what we are talking about here.
The authorities go on to say:
"Three instances of delegated power to modify Acts of Parliament may be given."
The first—surprise, surprise—is the European Communities Act 1972, section 2(2)—the very provision that we are now discussing, because it is under that provision that the statutory instruments would be subject to annulment, which the amendment tabled by my right hon. Friend the Member for Wells seeks to change. My hon. Friend Mr. Shepherd and I agree with him—we have also put our names to the amendment—that at the very least the affirmative procedure should be used. I shall point out in a minute—I am afraid that it will not be a minute, Sir Michael, but a little longer—a serious contradiction between the Bill and the 1972 Act, certainly in spirit if not in precise effect.
Section 2(2) of the 1972 Act
"authorises the making of Orders in Council and ministerial regulations to implement Community obligations of the United Kingdom"— under clause 3, that wording, "Community obligations", would be changed, through the schedule which the hon. Member for Wolverhampton, South-West and I were discussing earlier, to "EU obligations"—
"to enable rights under the European treaties to be exercised and 'for the purpose of dealing with matters arising out of or related to any such obligation or rights'".
Schedule 2 to the 1972 Act, on which the making of statutory instruments turns, throws up one or two interesting questions, because it
"excludes certain matters from the general power, including the imposition of taxes, retroactive legislation and the sub-delegation of legislative power (other than power to make rules of procedure for any court or tribunal). Subject to these limitations, measures made under section 2(2)"— the instruments made in pursuance of European treaty obligations—
"may make 'any such provision (of any such extent) as might be made by Act of Parliament'".
What we are dealing with, Mrs. Heal—I welcome you to the Chair—is a provision within section 2 of the European Communities Act, to be exercised through statutory instrument, which in turn has the same effect as any Act of Parliament.
My hon. Friend Mr. Francois might be interested to know why I am so concerned to ensure that we retain the supremacy of Parliament and the right to be able to redress things that can go wrong. It is to ensure that the courts do not apply the European legislation in such a way as to set it in concrete, and/or even, as in the case of Factortame and the Merchant Shipping Act 1988, to strike down Acts of Parliament. That might not be known to many people outside the House, because we tend to talk to one another. I hope that the BBC, under its charter, and others will ensure that people know that under the European Communities Act 1972, our ability to legislate is increasingly incapacitated.
Under those kinds of provisions, to be exercised through statutory instrument—as I shall describe in a moment, mere annulment on the Floor of the House is virtually no defence whatever—legislation is being imposed on the voters of this country in a manner that would horrify them if they knew that it was going on. What would they think if they also knew that it could not be repealed, on the assertions of the European Court, but not on my assertions or those of the House, if it properly considers such matters? Through a "notwithstanding" formula—notwithstanding the 1972 Act—we could ensure that nothing in the Act, including the provision related to the statutory instruments that can modify Acts of Parliament, shall be construed by any court of law as affecting the legislative supremacy of the United Kingdom Parliament. That is an essential safeguard. This contribution on the effect of statutory instruments and the vast amount of power that they contain, under the arrangements, complements my speech on supremacy last Wednesday.
The authorities continue:
"The intention in using such wide language must have been to exclude the possibility of judicial review on grounds of vires in the case of instruments made under section 2(2)."
Therefore, we are dealing not only with provisions that have the effect of being like Acts of Parliament, which cannot be amended because of the 1972 Act, but with judicial review being ruled out. That is pretty darn close, and is actually past the tipping point of an elected dictatorship—not even within the House, but going out into the European Union. In relation to thousands of statutory instruments, we are effectively being asked to hand over a power under section 2 that is virtually unchallengeable. In a moment, I shall deal with the minuscule, residual and meaningless opportunities for Members of the House to do anything about the instruments in question and their huge consequences. A power of annulment is a pathetic little block on the power that that provision gives to the European Union and Ministers.
It is truly said that the provisions of Community law that do not have direct effect were addressed in two ways by the 1972 Act: first, by making amendments to existing legislation to bring it into line with Community law; and secondly, by introducing a general power to make subordinate legislation—the matter that we are discussing—to cover future as well as present Community instruments.
According to the great commentators in their constitutional work,
"Although there was concern about the new power to make subordinate legislation, the government did not expect the power to be frequently used".
I believe that that refers to the Government of the late right hon. Edward Heath. I have to say that I have always had the gravest reservations about the way in which the 1972 Act was put through, and about the broken promises contained in it. As for the statement that
"the government did not expect the power to be frequently used", perhaps they said that they hoped it would not be used. The authors of this great work then add
"an expectation which was clearly unfulfilled."
Under section 2(2) of the 1972 Act, regulations may be introduced by a designated Minister
"for the purpose of implementing any Community obligation".
Under the schedule, for "Community obligation" we must read "EU obligation", and for "EU obligation" we must read
"The Union shall replace and succeed the European Community."
That derives, in this context, from the unacceptable, deceitful mandate that was put through without reference—except on
We cross-examined the Minister for Europe—who is sitting here today—and the Foreign Secretary, and asked them about the timing. I will not go into all of it now, but the bottom line is that the European Scrutiny Committee—a Labour-dominated Committee, I might add—was so appalled by what had gone on that its members, including our excellent Chairman, went on record in two reports proving the deceitful manner in which the thing had been done, and also stating that this constitution was substantially equivalent to the original constitutional treaty.
You will understand, Mrs. Heal, why I am linking the vast powers that the clause provides to the manner in which the whole process has been conducted. It is a thorough disgrace. It is completely outside the norms of parliamentary legislative processes. To my mind it is the equivalent of the dreadful provisions in the so-called Northern Rock Bill, but I need not go into that again today.
According to the great authorities whom I have been quoting, the Government said that they
"did not expect the power to be frequently used".
For the benefit of those who wish to see what was said at the time, a reference is given:
As I observed earlier, the Government may have merely said that they did not expect that to happen, but any such expectation "was clearly unfulfilled".
Section 2(2) of the 1972 Act, which enables powers to be introduced by a designated Minister for the purpose of implementing Community obligations, is subject to schedule 2, which provides that the regulations may not be used for the purposes that I mentioned earlier. As I said, one is retrospection and another is tax. A third is the creation of
"any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine" amounting to more than level 5 on the standard scale. The power to make regulations under those provisions is exercisable by statutory instrument which—these words are important—
"if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House."
The amendments would specifically remove the right to make the resolution subject to annulment, in line with what was, apparently, originally intended. They are extremely important, because they propose that, at the very least, the order should be subject to approval rather than—as clause 3 proposes—subject to annulment. However, that is said without prejudice to my other point, which is that the process should not take place in a way that would enable, by statutory instrument, the variation and modification of matters that should be dealt with by Act of Parliament.
These provisions are the European equivalent of a Henry VIII clause, which I should think would be a Charles V clause, a Frederick the Great clause or a Catherine the Great clause. This is another example of the change that is taking place in the way in which we legislate. It should be done, if at all—and I wish it were not done—by Act of Parliament, and not by any statutory arrangements of the kind that are being proposed. Fresh obligations under Community law continue to be implemented by both primary and secondary legislation, but, as I have said, it is not possible to amend those legislative arrangements, whether by primary legislation or by statutory instrument.
The constitutional commentators say:
"Although the power to make subordinate legislation has been widely construed, the government must indicate in clear terms what primary legislation is being repealed or amended when this procedure is invoked."
We are dealing with matters that have been given a great deal of judicial notice, but the reality remains that under section 3 of the 1972 Act it is incumbent on courts to give effect to what the European Court of Justice decides. It is necessary to complete the process to give effect to European law, hence my new clause 9, which would give us the right to reassert and put into effect the "notwithstanding" formula to override the 1972 Act where necessary.
Lest anyone imagine that that has not been done before, I remind Members that two years ago, in May 2006, the Bill that became the Legislative and Regulatory Reform Act 2006 was debated in the House. It was all to do with burdens on business, a matter of huge importance given that Commissioner Verheugen has said that it is costing the European Union some £100 billion a year, or perhaps €100 billion a year—anyway, a vast amount. That is a European Commissioner saying that over-regulation has gone mad. I wrote a pamphlet called "The Strangulation of British Business" along the same lines. The statutory instruments made to give effect to this over-regulation are now based on the Legislative and Regulatory Reform Bill, in which there is an order-making power to give effect to, among other things, European regulatory reform legislation. They call it better regulation; I say it is much worse, because there is so much of it. The amount is secondary to the qualitative effect. The quantity is appalling, but the qualitative effect is vast, as Commissioner Verheugen has said. The provisions in the Bill that would be put through by annulment only must at the very minimum be made by way of affirmative resolution.
I proposed a "notwithstanding" formula to bypass the order-making power of the type referred to in clause 3. That formula, in the interests of economic competitiveness, was endorsed. The Whips asked if I would be good enough to allow them to take over the amendments. I said, "By all means, feel free." Lord Waddington, my good friend, took it through the House of Lords six weeks later. We did not win the vote but the Conservative party, here and in the Lords, endorsed the procedure, which would stop this nonsense taking place.
I now turn to the procedure that is to be followed. Irrespective of whether the matter is a European Community one or not, these are the parliamentary procedures prescribed for statutory instruments. I have here a helpful factsheet produced by the House of Commons Information Office. It is in good straightforward language and describes the nature of statutory instruments. It states that many laws in the UK pass through Parliament in the form of Bills, but:
"Often, Acts only contain a broad framework and SIs are used to provide the necessary detail that would be considered too complex to include in the body of an Act.
Secondary legislation can also be used to amend, update or enforce existing primary legislation. Statutory Instruments are just as much a part of the law of the land as an Act of parliament. The Courts can question whether a Minister, when issuing an SI, is using a power he has actually been given by the parent Act"— that is the ultra vires question; is it within or beyond the powers of the Act?—
"but cannot question the validity of the Statutory Instrument for any other reason."
I have just pointed out that it was clearly intended that the method to be employed under section 2 of the European Communities Act 1972, to which these instruments relate, was designed to avoid questions of ultra vires being challengeable in the courts. The factsheet indicates that the process is not meant to be carried out in a way that would result in challenge in the courts, but we know that there has been a serious attempt to try to avoid European statutory instruments being challenged in the courts for lack of vires.
How do these statutory instruments get made? I was on the Joint Committee on Statutory Instruments for several years under the chairmanship of the late husband of Mrs. Cryer, Bob Cryer; a very good man and excellent cricketer, who captained the Yorkshire—
All I can say—the transcript will demonstrate this—is that although I am making a fairly substantial, some would say long, speech, every single word I have expressed is directly related to the instrument-making power and to the impact of the extension of EC law to modifying Acts of Parliament by statutory instruments, which is under no circumstances acceptable.
When I was on the Joint Committee, I suggested that against the title of every statutory instrument that came from the EU we should put a little "e" so that when people tried to judge whether or not the question of vires applied, they would know whether the instrument was related to a European Community obligation or not. I understand that once I left the Committee, that process was discontinued, which is a great shame. I hope it is to be brought back—someone suggested that there was talk of it—otherwise, one cannot track the extent to which European legislation has that overriding quality.
In relating this matter to the proposal from my right hon. Friend the Member for Wells that it should be subject to affirmative resolution, an interesting question arises from the procedure of negative resolutions. A negative resolution is a procedure for annulment.
It is like "The Devil Rides Out", but the devil is in the detail. Instruments subject to negative resolution procedure become law unless there is an objection from the House. The instruments are laid in draft and cannot be made if the draft is disapproved within 40 days. That is significant because it is not possible under the 1972 Act to disapprove a draft; one is not allowed to as a result of the implications of sections 2 and 3 of that Act.
Clause 3(5) of the Bill states:
"An order under subsection (4)—
(a) may include incidental provision
(b) shall be made by statutory instrument, and
(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
That is nonsense. It is quite clear that such an order cannot be made if the draft is disapproved within 40 days. It is not, however, possible for the House to disapprove it because of sections 2 and 3 of the 1972 Act, so this provision in the Bill is a complete nonsense. I would like the Minister to address that point. It has taken me quite a long time to reach it, but it must be right because I am referring to a House of Commons factsheet. It states that statutory instruments that are subject to the negative procedure
"cannot be made if the draft is disapproved within 40 days", but there is no power to do that under the 1972 Act—which, incidentally, is part and parcel of the entire operation of the Lisbon treaty. Therefore, as I have said, this provision is complete nonsense.
It would be preferable for the instruments to be subject to affirmative procedure, because under those arrangements instruments cannot become law unless they are approved by both Houses. I say with due deference to my right hon. Friend the Member for Wells that although I agree that it is important for us to have something better than the negative procedure, the reality is that even if we have the affirmative procedure and do not use primary legislation, we will run straight into the problems of the acquis communautaire and the 1972 Act. Furthermore, even primary legislation can be overridden—which is why I tabled new clause 9 on the supremacy of Parliament. Therefore, we are in a fine old mess, and I do not think it is possible for people to appreciate quite how much power has drained away from this House.
There is a body called the Joint Committee on Statutory Instruments; I have served on it. There is also a new Lords Committee on the Merits of Statutory Instruments. It was first appointed in December 2003, and it complements the work of the Joint Committee. The Merits Committee's task is to consider the policy implications of statutory instruments and to decide whether a statutory instrument should be drawn to the House of Lords' attention on certain grounds, including
"that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House" and
"that it inappropriately implements EU legislation".
Therefore, in relation to the provisions under clause 3, it can ask whether any instruments inappropriately implement EU legislation. I do not, however, believe that it will ever say that any instrument does do so inappropriately. I dispute the primacy of European law, as do many of my colleagues—more than 40 Members have signed my amendment on supremacy, and many others of all parties agree. The arrangements stipulated in relation to the primacy of European law—asserted by the European Court of Justice and weakly accepted by our Government and other Governments—even assert powers over our constitutional rights. They must be rebutted.
I regret having had to explain this situation at some length, but it is important to understand that my speech has not been just a European filibuster or a Eurosceptic rant. It is about the way we legislate under the procedures prescribed in clause 3, the inadequacy of the control that we have over them, and the inability to be able to deal with European legislation in many instances because of sections 2 and 3 of the 1972 Act. It is therefore necessary for us to reassert in practical terms—not just as a matter of general principles or abstractions, or in theological dissertations—how we can ensure that where negotiations have failed, we legislate on behalf of the voters of this country, so as, in relation to burdens on business for example, to guarantee economic competitiveness in the manner suggested by the current leader of the Conservative party.
It is a great pleasure to follow my hon. Friend Mr. Cash. I do not pretend to have anything like his mastery of the detail of this matter, but what shone forth from his analysis was the same underlying point as my right hon. Friend Mr. Heathcoat-Amory made in opening the debate: the need for transparency, and to ensure that points of significance are not disguised by terminology and that matters of substance are there for all to see. I think that we can make common cause on the fact that there has not been as much transparency as we would have liked in these proceedings, and in the process that led up to the intergovernmental conference mandate and then the IGC itself. It cannot be pretended that this has been a transparent process. I wonder whether the Minister can stand up and say that the process that led up to the IGC mandate in particular, which was little changed after the IGC itself, was as transparent as the Government would have wished it to be. I do not think anybody could say that it was transparent. My hon. Friend put forward one point of view and my right hon. Friend Mr. Gummer properly and honourably put forward another, although I certainly do not agree entirely with his different conception of Europe, but we can make common cause on the fact that there has not been the amount of transparency that there should have been.
My right hon. Friend the Member for Wells was entirely right to set all of this within the context of the overall changes that the Bill and treaty are making. We must begin by referring to the pillar structure, which we obtained from the Maastricht treaty. We were told at the time that that would be the settlement for Europe. It was said that the Maastricht treaty was the high point of European federalism: that it would put that beyond doubt and that in future matters involving our relationship with Europe would be contained within the system of the three pillars—the Community pillar and the intergovernmental pillars of justice and home affairs and common foreign and security policy. However, through the current treaty we have now seen the collapsing of those pillars. Instead we have, in effect, one treaty divided into two parts, which is why transparency is so important.
My hon. Friend and my right hon. Friend the Member for Wells were right to draw attention to the unifying effect of the treaty. It is there in article 1; we have gone from the three pillars to what is contained at the beginning of the treaty, which is there for all to see and which is a change from the treaty of Nice. We are told under title 1, article 1:
"The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as "the Treaties"). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community."
As my right hon. Friend made clear in his opening speech, when there are further changes in terminology within the structure we should have the opportunity to debate them in the House under the provisions of clause 3(5), and we should have the appropriate procedures so we know exactly what is taking place when, for example, there is a change in the treaty on the functioning of the European Union and the area of common justice, freedom and security, or a change in the common foreign and security policy which takes place within the treaty on European Union.
The terminology should be clear, because we need transparency as to what is taking place. My hon. Friend was right to set this in the context of what took place in the lead-up to the IGC mandate, because terminology is so important in that regard.
I think it is commonly agreed that we did not have the opportunity to scrutinise the proposals that the Government discussed at the IGC mandate Council meeting in June. The previous Foreign Secretary told the European Scrutiny Committee at the beginning of June that no negotiations or discussions had been taking place, yet on
We had no opportunity to scrutinise the terminology or the substance. That is so important as far as terminology is concerned because we know that the Government received a questionnaire from the German presidency in the period leading up to June's IGC mandate Council meeting. The Government told us that no discussions or negotiations had been taking place, yet we know they received a questionnaire from the German presidency last April, or thereabouts, asking them how terminology could be used in relation to the substance of the proposals being discussed.
Question 3 of that questionnaire asked:
"How do you assess the proposal made by some Member States using a different terminology without changing the legal substance, for example with regard to the title of the treaty, the denomination of EU legal acts and the Union's Minister for Foreign Affairs?"
Terminology is so important because we are debating how we are to scrutinise such matters in future and we must ensure that we have the right type of scrutiny.
Question 1 asked:
"How do you assess the proposal made by some Member States not to repeal the existing treaties but to return to the classical method of treaty changes while preserving the single legal personality and overcoming the pillar structure of the EU?"
This is exactly what is happening in this treaty and what was contained in the original European constitution, which we all know was rejected. Perish the thought that the thinking behind the German questionnaire was how the states concerned were going to get off the hook, disguise the fact that they wanted the constitution and change the terminology in order to do so—perish the thought that that was the process.
We know that the German questionnaire was sent to member states, including to our Government, only because it was leaked—again, no transparency. Our Government have yet properly to admit even that they have received it. The then Foreign Secretary was asked about it in Foreign Office questions last May by my right hon. Friend. The substance of her reply was that she barely knew about it and she would take no notice of it. I do not think that that is doing her a disservice, because she said that there had been no negotiations and she seemed not to have known much about the questionnaire. We certainly know that we have not seen what our Government said in response to the questionnaire.
Although you are right to ask me that, Mrs. Heal, I am spot on the case because we need to know that this House will have the opportunity to debate terminology to ensure that substance is not being disguised behind it, as happened in the very process by which this treaty was brought into being.
The Minister could go a long way towards answering our concerns by telling us why the Government are so reluctant to publish their response to the German questionnaire—it is not too late, but I do not suppose they will do so. The Minister looks a bit concerned about that, but if we are to accept that the Government are being transparent, we need to know what their response was. The questionnaire's wording makes it evident that proposals had been made by member states, so while he is at it perhaps he could tell us whether the Government made any proposals to the German presidency before it came up with this questionnaire.
I hope to come back to the hon. Gentleman, because I know that he is very interested in this matter.
I agree with the analysis, although not the conclusions, of my right hon. Friend the Member for Suffolk, Coastal on this matter. We also need transparency because of the extension of qualified majority voting. We will have a debate on that later, but transparency is important because the treaty marks a sea change on QMV and several of its provisions will make it much easier for the Community to move to QMV. The treaty was designed by those who negotiated it with that view in mind. Such provisions can only be in place to make it easier to move to QMV. Whether one agrees with QMV or whether, as I am, one is reluctant about it and thinks that it should be handled extremely carefully because it involves a significant movement of sovereignty—
Indeed, and I hope that I will catch your eye, or the eye of whoever is in the Chair at that time, Mrs. Heal. This is just a little preface of future remarks. We have been short of time in these debates and Back Benchers have often not had the opportunity to contribute, so we might not get a chance to hear them later. We need transparency, given what has taken place and what I suspect is in store for us—future incremental constitutional change, which this treaty embodies.
Amendment No. 39, which was ably introduced by my right hon. Friend Mr. Heathcoat-Amory, would allow for all orders made under clause 3 to be subject to the affirmative resolution procedure rather than the negative resolution procedure, as the Government wish. It would thus improve the Bill by compelling the Government to lay all orders made under subsection (4) before Parliament and by instructing that such orders should all be positively approved by resolutions of both Houses. The amendment would thus improve parliamentary oversight of the implementation of the treaty's details into UK law without, for better or worse, wrecking the Bill in the process.
I hope that hon. Members from all parties, including the Liberal Democrats, who have expressed the wish to strengthen Parliament when outside this place, will join us in supporting the amendment. I understand that Jo Swinson said as much—
I apologise to the hon. Lady; I had to nip out of the Chamber for a few minutes, so I missed her contribution. I am grateful for her commitment that the Liberal Democrats would vote with us on the amendment, and we look forward to that being honoured when the Bell rings.
My hon. Friend Mr. Cash also touched on the amendment briefly—for three quarters of an hour.
I have short-changed my hon. Friend—it was 50 minutes. He discussed the amendment knowledgeably. It specifically relates to the operation of orders made under subsection (4).
As my right hon. Friend the Member for Wells and others explained, the clause puts into United Kingdom law the terminological changes necessary to reflect the fact that the Lisbon treaty merges the existing EU entities, save the atomic energy body, into one legal entity, just as the original constitution attempted to do. The EU's three-pillar structure is largely abolished. Justice and home affairs are totally absorbed into what has hitherto been called the European Community, which is a fundamental change. The distinction in name and legal personality between the intergovernmental second pillar on foreign and security policy and the European Community is also done away with.
Those technical changes actually signify profound changes in the EU's structure, purpose and powers, belying the ridiculous claim that Lisbon is merely an amending treaty of little real importance, as the Government would have the House and the country believe. In the place of three distinct agreements, if the Bill is passed, we will have one new all-encompassing legal personality, swallowing up the distinct activities that come under the EU mantle. If the treaty is ratified, the European Union, which until now has existed only as an umbrella term encompassing the various European agreements, will become less of a temple and more of a monolith, with a unified legal identity in its own right.
The Minister is fond of saying that the constitutional concept has been abandoned, but whatever the Government's sophistry about the treaty, its outcome will be almost exactly the same as that of the old constitution: the collapse of the pillar structure, which until now has safeguarded sensitive parts of our sovereignty as intergovernmental, and the merging of the EU into one legal entity.
He has obviously clocked it, and we shall hear his response in a moment.
The amendment would mean that changes such as I have described would be scrutinised by Parliament, and it would therefore improve the Bill. We were promised line-by-line scrutiny, but, as we heard earlier, that has not happened. If the amendment is accepted, we can at least scrutinise further changes to the terminology of the treaty, which, as we have heard in detail, could be of wide-ranging significance. It would not wreck the Bill, but would improve it. It will be supported by the Opposition and by the Liberal Democrats, and it would be nice to hear that the Government have decided to support it as well.
It is a delight to follow Mr. Francois, as always, and to have the opportunity to respond to the debate on the rather narrow amendment No. 39, which has been wide ranging and always in order. We have heard from a number of right hon. and hon. Members, including Mr. Cash in a speech that was 46 minutes short.
I made it 46, but perhaps it was nearer 50. The hon. Gentleman said that he had been accused of a Eurosceptic rant or filibuster, but I hope that he accepts that at no point have I suggested anything of the sort. While listening to his reflections on the cricketing skills of the late Mr. Cryer, who was a Labour Member, I appreciated why the House had previously taken a view in principle on the timetabling of certain Government business. We were denied the opportunity to hear even more on the apparently great cricketing skills of my friend Mr. Cryer.
I shall respond to the specific, wide-ranging points that hon. Members made. I do not wish to go into detail on all of them, and the Committee would not thank me for doing so, because we have other amendments to reflect upon. A number of right hon. and hon. Members asked me about legal personality. We have been round the houses about it previously and are well versed in the arguments: having a legal personality is not new for the European Community or the European Union. The EC has had a legal personality since the treaty of Rome in 1957, and the EU has a functional legal personality that has enabled it to conclude 100 or so agreements in its name over the years.
Several right hon. and hon. Members mentioned competence. The Law Society guide to the treaty, which was published earlier this year, states:
I have made the point before that the Law Society is not some foreign construct aimed at undermining the established will of the United Kingdom; it has offered a considered opinion on EU competence.
Qualified majority voting was mentioned by Mr. Clappison, Mr. Gummer and others. In principle, the Government are in favour of its extension. I disagree with the right hon. Gentleman about some of his points about the handling of the Bill, but I understand why he made them. However, he was correct about the important dynamic that qualified majority voting creates for the United Kingdom in its negotiations with the EU. As the Committee is aware, the proposed move from qualified majority voting to double majority voting will increase the UK's share of the vote by 50 per cent. The change will improve the position of the UK and strengthen our bargaining position, as was pointed out by the author of a report by the London School of Economics.
The Minister is going through the points made in the debate, and I understand the formality of that, but I asked a number of substantive questions and I hope that he will come to them. Does he deny that the new arrangements will effectively give power to modify Acts of Parliament, and does he think that that is the right thing to do?
The Minister will know that in the White Paper leading up to the 2003 negotiation, the Government vehemently opposed the extension of qualified majority voting, because they said it would undermine the role of national Parliaments. So that we can scrutinise how much name changing will happen, will the Minister tell us why he thinks the Union is so keen to have qualified majority voting on, for example, foreign affairs? Under those provisions, apart from what we might do ourselves, such matters would not come before the national Parliaments of member states. Why is the Union so keen to move to qualified majority voting that it has a special—
Of course, as usual, I will abide by your strictures, Mrs. Heal, and we may, of course, have the opportunity to debate that in tomorrow's proceedings.
Amendment No. 39, which stands in the name of the right hon. Member for Wells and is supported by the hon. Members for Stone and for Rayleigh, among others, is intended to make it more difficult for the Government to make changes to terminology or numbering in other UK laws that result from the Lisbon treaty. The Bill contains a power for the Government to update terminology and numbering in existing legislation. That is a power to make purely technical changes. For example, the article numbers in the treaties will change on the entry into force of the Lisbon treaty, and the co-decision procedure is renamed as the ordinary legislative procedure. Those are not changes in substance, but UK law may need to be updated to reflect such changes in terminology.
Again, I disagree with the conclusions reached by the hon. Member for Stone, but the Committee would generally agree that he made a thoughtful contribution. I hope that he will not mind my saying that his assertion was a criticism of section 2(2) of the European Communities Act 1972. It is commonly acknowledged that subsections (2)(a) and (2)(b) contain relatively wide-ranging powers.
There are one or two points to make on that. First, it is clear from the authority that I cited that, despite what was said in February 1970 during the passage of that Bill, people did not expect the provisions to be used as they have been. Secondly, they had not anticipated the question of trying to exclude judicial review. Lastly, do not these provisions contain deeming arrangements that would be retrospective?
If the hon. Gentleman will allow me to make a little progress and if time allows and the Committee's patience bears it, I will, of course, give way to him if he so wishes.
This reflects the powers and definitions in the general provisions in section 1(2) of the 1972 Act, contrary to the hon. Gentleman's assertion, which was a criticism of the much wider power that relates to the general implementation of treaties under section 2(2).
Surely, if a mistake was made in the 1972 Act that was apparently not expected at the time, as I have explained, this is the time to put it right, not to compound the problem, when all the treaties are amalgamated into the Lisbon treaty.
I hope, rather than expect, to reassure the hon. Gentleman that a much narrower, more clearly defined power is being sought, and it relates to section 1(2) of the 1972 Act, rather than the more widely drawn section 2(2). The changes that we envisage will not involve any change of substance in existing UK legislation. This is purely a technical, updating exercise. Clause 3(4) makes it clear that the powers to update references in existing legislation is limited to reflecting
"changes in terminology or numbering arising out of the Treaty of Lisbon."
That is a narrowly defined power.
My hon. Friend will have heard me remark that clause 3 would be better drafted if the word "definition" were included in its title and if the word "terminology" were removed from subsection (3). That would lead to greater understanding of subsection (4), on which the amendment has a direct bearing. Does my hon. Friend agree? If so, will such amendments be tabled in another place? If he does not agree, perhaps he will briefly explain why?
Of course, I will happily do so. My hon. Friend has paid assiduous attention to every twist and turn of the Bill almost every day, and the Committee should give him the credit that he is fully entitled to. I listened with great care to the points that he made, and my view is that it would be unnecessary to make the changes that he suggests. Clause 3 will amend section 1(2) of the 1972 Act, which, of course, as the Committee will be aware, lists the definitions contained in that Act. Amendment of the 1972 Act is required only to reflect changes of terminology, which is what clause 3 is all about.
Let me make some progress on the argument. The Government need to ensure that all existing references to the European Community are updated and that other technical changes are made—for instance, reference to the numbers of treaty articles or the names of instruments and procedures. We need to be sure that that is done thoroughly, to ensure legal certainty.
There is no point in progressing along the lines suggested by the right hon. Member for Wells in respect of the affirmative procedure. The Government have referred in the Bill to both the House of Commons and the House of Lords. Subsection (5)(c) contains the words:
"subject to annulment in pursuance of a resolution of either House of Parliament."
That is the better way to progress. Under amendment No. 39, we would have to return to the House for each and every minor change of terminology, on the many hundreds of occasions that that may be necessary. The Bill will avoid that exercise, and it is clearly provided that any order will be subject to annulment in pursuance of a resolution. If the treaty is ratified and we do not update the terminology in our legislation, confusion and uncertainty could arise.
Finally, the powers are very closely defined in clause 3(4), and those narrow powers are reflected in the schedule. With those words, I hope that I have persuaded the Committee to oppose amendment No. 39.
I am grateful for the support for my amendment expressed in several quarters, particularly by my hon. Friends the Members for Stone (Mr. Cash) and for Hertsmere (Mr. Clappison) and, slightly unexpectedly, by the Liberal Democrats, who support my amendment, although, as usual, for the wrong reasons. I must also mention the contribution of my right hon. Friend Mr. Gummer. Although we disagree about the substance of the treaty, his contribution to the debate certainly helped to analyse the issue, and his point was a good one: this is one of the very few occasions in these debates when we have been able to devote sufficient attention to one aspect of the Bill. The line-by-line scrutiny that we were promised has been comprehensively forgotten and that promise broken, but today at least we have been able to ventilate these issues at some length.
The key point in my amendment is simply that clause 3(4) and (5) will give a power to the Secretary of State or the Treasury to make amendments to existing United Kingdom laws and statutory instruments, and some of those laws have been on the statute book for many years. That is supposedly to reflect changes in terminology, but it is quite clear from the way the clause has been drafted that it is not limiting. It does not strictly confine such amendments to the making of technical name changes, as suggested by the Minister. If such changes were strictly confined to making differences of name or number, that would have been stated in the Bill. However, those amendments simply have to reflect changes in terminology.
At the start of the debate, I gave examples of where apparent changes in terminology in fact make substantive changes. The change from EC to EU is not simply a technical change, because the EU will include not simply all those matters in the existing EC treaty, but all the intergovernmental matters in foreign and security policy and in justice and home affairs. I gave some other examples, to which the Minister has completely failed to respond.
I instanced specific statutory modifications that we know the Government want to make because they are listed in the previous Bill, which was introduced in 2005 to give effect to the constitutional treaty. Those modifications include amendments to the Export Control Act 2002 that will bring into British law provisions and obligations in the common foreign policy that prevent people from exporting goods and making technology transfers. The modifications also include alterations to the Criminal Justice Act 2003 that completely change it by including reference not to the intergovernmental method of deciding criminal justice matters, but to the new measures in the treaty of Lisbon, which collapse the intergovernmental pillar and make criminal justice matters subject to the European Court of Justice and normal decision making through majority voting.
The Minister owed us an explanation and a response to the detailed questions that I asked him about the amendments to British and UK law that we know the Government want to make—amendments that are not simply technical, but involve matters of substance. In view of the Minister's poor response, I shall press my amendment to a Division.
Amendment No. 55 concerns the way in which Acts of Parliament or statutory instruments made under Acts of Parliament will be treated as referring to the European Union rather than to the Community, which is a similar issue to that covered in the previous debate. I do not intend to speak for more than a short time, because I raised most of the issues that I want to address in the previous debate. Furthermore, I encapsulated the fundamental question about the merger of the treaties in the speech that I made about an hour ago.
Clause 3(6) does not specifically refer to "Changes of terminology", but to
"an Act or instrument made under an Act", which is very wide. It refers to all Acts, including the European Communities Act 1972, so it is not confined to any one Act.
Subsection (6) also contains the phrase:
"a reference to all or any of the Communities", which relates to my point about the merger of the existing treaties. I objected to, remain concerned about and would oppose again, if I had the opportunity to do so, the intergovernmental arrangements under the Maastricht treaty, because they provide for European government rather than European trade. Irrespective of the question whether there is intergovernmentalism, the collapse of the pillars and the fact that the existing treaties will be merged into a Union and will overtake the Community, my fundamental objection to the way in which the whole of the European Union is being relentlessly integrated is that the arrangements involve European government rather than European trade. I am in favour of an association of nation states—as a matter of fact, I would prefer to return to the European Free Trade Association.
Subsection (6) states:
"In an Act or instrument made under an Act a reference to all or any of the Communities shall, in the application of the enactment or instrument after the passing of this Act, be treated as being or including (as the context requires) a reference to the EU."
That is a deeming arrangement, and it is effectively a retrospective arrangement. For both those reasons, I take exception to it, which is why I want it left out. It does include the European Communities Act 1972. As people pay more attention to the issue in future, as and when it arises, they will find that unexpected things will be done under the arrangements which will have consequences that people do not at present anticipate. My objection is that the provision is not only about terminology—it has certain substantial consequences. The issue links back to the merger of the treaties, to which I object, and relates to a deeming or retrospective provision, to which I take exception.
In arguing that subsection (6) should be amended, is the hon. Gentleman not going through the same arguments as those on the previous group of amendments? Subsection (6) is a consequence of the treaty and this Bill. Although some of the hon. Gentleman's arguments may be right and he may be opposed in principle, is he not arguing about a consequence of the treaty and the Bill, and no more than that?
I do not wholly disagree with the hon. Gentleman, but the issue is different in respect of the arrangements under the earlier subsections. In discussing those, we were dealing exclusively with terminology; now, we are dealing with the deeming of an Act. The idea is that there is a retrospective deeming of the wording and that that involves more than terminology because it has constitutional implications. However, frankly, although it is objectionable, I do not think that the issue is of the same order of concern as the previous proposals relating to whether there should be an affirmative or negative procedure and the whole question of the modification of Acts of Parliament through statutory instruments. That is as much as I need to say on the provision so I shall sit down.
Amendment No. 55 seeks to delete subsection (6) from clause 3. As we have seen from our discussion of amendment No. 39, clause 3 gives legal force in domestic United Kingdom law to the Lisbon treaty's collapse of the separate European Community pillars, which include among other things the single market and the common agricultural policy, into the European Union's new unitary legal identity, which will also incorporate the currently legally distinct common foreign and security policy and co-operation in police and criminal justice matters.
On the international level, terminological changes flowing from and supporting that fundamental change are made to existing European Community CFSP and police and criminal justice Acts brought in under the current treaties by article 5(3) of the Lisbon treaty. The laws will continue to have force until they are amended or repealed under the new treaty provisions. Article 5(3) of the Lisbon treaty provides that all existing references in those laws to the titles, sections and numbering of the treaties will be automatically understood to refer to the titles, sections and numbering of the treaties as amended by the Lisbon treaty.
Clause 3 seeks to amend UK legislation to keep it in line with those changes at EU level. To that end, subsection (6) seeks to provide for a blanket change in how terminology in existing UK law will thereafter be understood. Specifically, it says that any instance of "European Communities" shall be treated as a reference to the "European Union".
As we have seen, those changes can have wide-ranging importance due to the fact that the new EU will be far wider than the existing European Community. In particular, the change in the meaning of all UK law currently referring to the European Communities could, depending on the UK laws in question, give domestic legal effect to common foreign and security policy provisions, despite the fact that the Bill excludes the CFSP from the definition given to the EU treaties in the 1972 Act. That is because the term "EU" alone is not restricted to the 1972 Act's definition of the EU treaties—as provided in clause 3(1) of the Bill, it includes everything under the EU exactly as it is provided for in the treaty on European Union at international level. That means the common foreign and security policy as well.
Our key objection to subsection (6) is that it is such a blanket provision, the true consequences of which we cannot know without examining every individual change that it would make to each of the affected EU laws. For that reason, the subsection is not only potentially somewhat dangerous but unnecessary because, as we saw during our debate on the previous group of amendments, clause 3(4) and (5) already give the Government the power to make orders to vary the terminology of any references in UK law that have not already been provided in the schedule to the Bill.
We have already stated that we believe that orders made under subsections (4) and (5) should be made only by the affirmative procedure so that we can better scrutinise the effect that each would have. I am disappointed that the House did not see fit to agree to that amendment, but the argument was nevertheless put and debated. Clause 3(6) is also a potential problem, as changes made under that provision are not even subject to the negative procedure.
Under clause 3, the changes in each instance are automatic and outside the scope of parliamentary scrutiny and are therefore unwelcome. Amendment No. 55 will improve the Bill without wrecking it, by allowing for all terminological changes in UK legislation following the Lisbon treaty, were it to be ratified, to be brought before Parliament for scrutiny, to ensure that the changes were really only terminological and were otherwise acceptable to the legislature.
My hon. Friend and I have both opposed the Bill from the outset. However, it is important to make it clear to the House, should we divide, that amendment No. 55 is a procedural one that would not wreck the treaty, although it would, for the reasons that he—and I, pretty much in agreement with him—have outlined, strengthen parliamentary scrutiny. The amendment would not wreck the Bill per se, but strengthen the House's powers in relation to the treaty.
May I go on to make a point about amendment No. 56? Modestly, my hon. Friend mentioned amendment No. 55, but did not go into detail about amendments Nos. 56 and 57. At the risk of infringing his copyright, I want to say a brief word about those amendments, which also stand in his name. Those amendments seek to improve clause 3(6) by limiting its blanket changes in terminology to those of Acts only. Like amendment No. 55, they would improve the Bill by limiting its unforeseen consequences, so we think that they also deserve support.
Clause 3(6) contains a blanket change to the terminology of wide swathes of domestic UK legislation without any detailed parliamentary scrutiny at all. Those alterations in terminology could have substantive effects. Amendment No. 55, which we on the Conservative Front Bench are minded to support should my hon. Friend wish to press it to a Division, seeks to remedy the situation by deleting subsection (6) in a way that would not wreck the Bill in its entirety. If the amendment is agreed to, important changes in British law could be brought before Parliament for specific approval. That would improve the Bill and deserves our support.
I echo the opening remarks of my hon. Friend Mr. Cash. This does not seem to be as important as the previous provision as regards transparency, but there are still one or two questions in my mind. In the light of what my hon. Friend said, could the Minister give us a list of the types of Communities that are referred to in subsection (6)? We know about the European Coal and Steel Community and Euratom, but since it refers to
"all or any of the Communities", can he tell us which particular ones?
Will the Minister give us a sense of where this sits in the whole constitutional debate? Part of the purpose of the original constitution was to bring the same terminology into play throughout the various legal provisions relating to the European Community as it was, or the European Union, as it is now.
When the Minister made his original winding-up speech, I did not hear him reply to my question about the German questionnaire, which is also relevant in this context.
I am delighted, and modestly surprised, to be responding to this debate so early in our proceedings, but glad that I have prepared a couple of hours in response.
I am not sure whether the amendments tabled by Mr. Cash were intended to wreck the Bill, as he suggests—I think that he is being unfair on his amendments—but I acknowledge his avowed intention to wreck the Bill, and therefore the treaty.
Let me turn to the specific points that the hon. Gentleman raised in respect of amendment No. 55; he mentioned amendments Nos. 56 and 57 only in passing, although Mr. Francois eloquently and pre-emptively amplified the unspoken sentiment behind them. The amendments attack the reality of the situation—that the Lisbon treaty replaces the Community with the Union. If the UK, with Parliament's approval, ratified the treaty, it would be senseless to seek to deny that reality.
As we heard in the previous debate, clause 3 deals with the changes in terminology and numbering resulting from the Lisbon treaty.
The Minister is talking about changes to terminology and numbering. However, the argument in favour of the amendments to subsection (6) appeared to be that if we rename the Communities as the Union, that will somehow give authority or precedence to the EU, particularly in relation to the common foreign and security policy. That would make it constitutional and would therefore raise certain issues. What is the Minister's view on this matter, and does he believe that this change would, even on a single occasion, give precedence to EU law on common foreign and security policy matters?
I am delighted to see the hon. Gentleman in his place and playing such an active part in our proceedings. I could not often say this: on occasion during this debate, the SNP's showing has been as large as, if not larger than, the official Opposition's Back-Bench showing. At the moment, it is half the number of Conservative Back Benchers, but half of two is one, and we are nevertheless delighted to see him.
As I am sure that the hon. Gentleman is aware, the CFSP is intergovernmental and does not apply directly in UK law; it already falls under the auspices of the EU, not the Communities. He can therefore be reassured on that point.
Can the Minister tell us what would be the legal position in the Communities under the provisions of these treaties if the Union seized on a foreign policy issue and was determined, by unanimity or by the procedures involving qualified majority voting, to take a particular course? Can the United Kingdom then legally take a different course under the provisions of these treaties?
I will not be tempted to stray too far down that path, Mrs. Heal, because you would rightly prevent me from doing so. On the specific point, that issue would not arise because strategic decision making on foreign policy is by unanimity. We would not need to block such changes through a legal procedure, but we would do so politically by not giving our agreement in a unanimous process.
I said that there were aspects of the other debate that I did not want to replicate in this one, but that does not mean that I thought it was anodyne, and I will tell the Minister why. The explanatory memorandum, which gives the Government's explanation of all this, says:
'The [European] Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union...Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.'"
To the extent that once that point is—
The First Deputy Chairman:
Order. I appreciate the hon. Gentleman's comments, but they are rather lengthy for an intervention. He will have an opportunity shortly to wind up the debate and explain his point further.
This evening we have had the hon. Gentleman's shortest speech and longest intervention.
The provision that is the focus of amendment No. 55 is, as the hon. Gentleman acknowledges, perhaps not anodyne, but less significant than what we discussed earlier. Clause 3 provides that after the passing of the Bill references to the Communities in UK law should be read as references to the Union. That is a purely technical change. In response to Mr. Clappison as regards subsection (6), the Lisbon treaty replaces the European Community with the European Union, so all existing legislation that refers to the European Community, to the Community or to the Communities needs to be updated to reflect the changes in terminology, and that is clearly the intention of the subsection. Amendment No. 55 would delete that provision altogether. In the light of what I just explained to the House about the purpose and effect of clause 3(6), I cannot see that the amendment makes any sense whatsoever.
Amendments Nos. 56 and 57, taken together, would mean that while the type of consequential change that clause 3(6) makes could be made in respect of primary law—that is, Acts of Parliament—they could not be made in respect of secondary law, which is the bread and butter of much European business.
If the Minister thinks that this is such a bad amendment, he should recall what I said in the previous debate about the impact on the secondary legislation that he mentioned. Those statutory instruments can modify Acts of Parliament, exclude judicial review and address a whole range of other matters, including constitutional issues. If I were the Minister, I would be a bit careful about asserting that the use of the word "instrument" in this case is as unimportant as he is making it out to be, because it contains within it a Henry VIII clause-type arrangement.
The hon. Gentleman and I have spent long enough together in this Chamber during the past few weeks for him to know that I am always careful when making my case on such matters—as is he.
The changes proposed will not make any changes of substance to existing legislation. If the treaty is ratified and we do not update the terminology of our legislation, there will be considerable legal confusion and uncertainty. Getting rid of the entirely sensible provisions in the clause will merely make life more complicated in a legal sense and create uncertainty. There are literally hundreds of Acts and statutory instruments that make reference to the European Communities, which would be affected by the amendment. If the amendment were accepted, technical changes would have to be made one by one. For example, the Potatoes Originating in Egypt (England) Regulations 2004 or the Food (Peanuts from China) (Emergency Control) (England) (No. 2) (Amendment) Regulations 2003 would have to be individually changed.
We can all take different views on such important matters, but to deny the legislative reality of the ratification of the treaty and the passing of the Bill by frustrating the workings of the House to ensure that individual changes had to be made to many hundreds of existing provisions, just two of which I cited for the House's enjoyment, would not be a sensible way to progress. On that basis, while continuing to respect the motivation behind the amendment moved by the hon. Member for Stone, I invite the House to reject it if he wishes to press it to a Division.
I certainly will press the amendment to a Division, not least because, as the Minister just said, the provisions affect hundreds of enactments. It is all very well to say, "It is just a matter of terminology; it is only a matter of words." But, almost by admission, the Minister has suggested that he does not know what impact the provision will have. I am totally unconvinced by his arguments for that reason. If he does not know why he is doing something, that is a good reason for us to challenge the basis on which it is done.
I shall press the amendment to a Division, but before I do so, I refer to the explanatory notes, which state:
"Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community."
The question that remains unanswered is what impact that will have. I believe that the clause will have constitutional implications. It merges the treaties. This is not just a matter of terminology, but a matter of substance and constitutional importance. Therefore, I am determined to press the amendment to a Division.
As I said earlier, clause 3 does two things. First, it makes technical changes to the terminology in UK law to reflect the Lisbon treaty. Secondly, it provides a power for a Secretary of State to make orders to amend primary or secondary legislation to reflect other technical changes in terminology or numbering that arise from the Lisbon treaty. The changes are technical and should be uncontroversial. Nevertheless, they are necessary.
The clause ensures continuity and consistency in new and existing domestic legislation. It also gives power to make similar technical changes by order, which will not mean a change of substance to existing UK legislation. There is no point in the suggested alternative approach of making consequential amendments in definitions to change "EC" to "EU". If clause 3 were removed, we would be left with legal confusion about important legislation that refers to the "European Communities", such as clause 24 of the European Parliamentary Elections Act 2002, which establishes in UK law the way in which elections to the European Parliament work in the UK. It sets the boundaries of electoral regions and determines how our voting system should work for those elections.
We have had a good general debate on the clause. Without it, Parliament would have to amend each of the hundreds of Acts, regulations and statutory instruments that refer to "European Communities".
The schedule is standard and clearly sets out the nomenclature changes to the 1972 Act. The Bill is designed to amend the 1972 Act and, as Conservative Members know, it provides for changes to the horizontal Act for interpreting UK law—the Interpretation Act 1978. Those changes obviously and clearly follow from the treaty.
I wish to argue to the contrary: that clause 3 should not stand part of the Bill. Our discussions on amendments Nos. 39, 55, 56 and 57 have shown that the clause tries to include in UK domestic law the changes in terminology that effect the virtual collapse of the EU's existing pillar system. As we all know, the EU is currently only an umbrella term for three distinct areas of activity, usually called "pillars". The three pillars are: the European Communities, the main part of which is the European Community, which includes the single market and the common agricultural policy; the common foreign and security policy; and police, justice and home affairs.
Under the treaty, the existing pillars will be virtually abolished. The European Community has merged with the European Union into a single unitary legal personality, incorporating all activity undertaken under the EU treaties, although Euratom would admittedly remain separate, as was pointed out earlier. Police and criminal justice matters are also subsumed into the same institutional provisions and decision-making processes that applied in what was the European Community.
The common foreign and security policy, although remaining subject to distinct procedures, as was largely the case under the original EU constitution, is also brought under the same single EU legal personality. All this will have important effects on the respective rights of the member states and the EU to conclude agreements with third countries and will of course interact with the new provision on implied competence in the article on exclusive competence. The changes in terminology set out in the clause reflect those profound changes and give them legal force in domestic United Kingdom legislation. Among other things, the clause changes, almost automatically as it were, all references in UK law to any or all of the "European Communities" to the "European Union".
As we heard in our discussion on amendment No. 39, changes in terminology might sound dull to the external observer, but they matter—in fact, they matter quite a lot. My right hon. Friend Mr. Heathcoat-Amory pointed to examples of where changes in the references to the EU treaties made by United Kingdom laws could lead to substantive alterations in the effect of UK laws. He detailed, at some length, a number of examples that I do not intend to reprise again, but they will all be in Hansard. I reiterate that there is a particular concern where a current domestic law gives effect in the UK only to European Community obligations, but where, following a change in the terminology to "European Union", it gives domestic effect to additional provisions, too.
As my right hon. Friend also highlighted, the Government seemed to be far more forthcoming about the sorts of changes that they were seeking in their Bill to ratify the original EU constitution, allowing at least some parliamentary scrutiny of those changes as part of the passage of that Bill. That leaves a burning question. Why have the Government been so coy about what the supposed terminological changes will entail in this Bill? Might the reason be that they are trying to hide the fact that some of the changes to UK law resulting from the Lisbon treaty are in fact important, seeking, in effect, to park them behind the old façade of a "tidying-up exercise", which they have sought to use all the way through, to disguise the important transfers of power being made from this House to the European Union?
Does my hon. Friend agree that our suspicions that the process that he describes is in play are increased by the fact that it was what the German questionnaire specifically suggested the Government would do? Does he share my curiosity about why the Government refuse to publish their response to the German questionnaire?
My understanding is that the Government have had the German questionnaire for some considerable time. Even with all the problems in our postal service, I would have thought that they could have sent back something by now. One would also have expected them to be in a position to publish their response.
That is possible if the Government put their response on two discs.
If we assume that the Government did not do that, however, my hon. Friend Mr. Clappison, who serves on the European Scrutiny Committee, has made an important point. When we were debating amendments, the Minister twice ducked his question about why the Government's response had not been published. Perhaps we can put the Minister on the spot in this slighter broader stand part debate and ask him why the response has not been published and when the Government propose to publish it. I thank my hon. Friend for reminding me about that question, which I am sure the Minister will now feel morally obliged to answer.
I listened with great interest to my right hon. Friend Mr. Heathcoat-Amory, who made a very good speech, and to my hon. Friend Mr. Cash discussing their amendments, which dealt with questions that were never answered. Does my hon. Friend agree that the clause gets to the heart of the matter, because it is a "trust me" clause? The Government are essentially saying, "Don't worry about all this stuff. We'll tidy this up and get on with it in due course. You don't need to worry your pretty little heads any more about the European Union treaty. We'll deal with it." Is there any reason at all why we should trust Governments on that, when we were given a constitutional guarantee at Maastricht that the pillar system would remain?
My right hon. Friend makes a good point. He homes in on the issue of trust. The Government have broken their word so many times throughout this process—on the referendum and on the promise that we would have 20 days' debate and line-by-line scrutiny. Their word has been undermined so many times that for them to come to the Committee and say, as my right hon. Friend put it, "Trust me," rings extremely hollow. His point is very well made.
Has my hon. Friend also noted that subsection (1) inserts a definition of the EU into section 1(2) of the European Communities Act 1972, referring to the European Union by reference to the treaty of Maastricht, which established it? I do not invite my hon. Friend to go too far, but he might understand why I am so opposed to the proposals. Regrettably, had other counsel prevailed at the time, we would not be in our current position, because it is the European Union that creates European government. It is the amendments that we are discussing that have caused so much constitutional difficulty.
I am prepared to make a small wager that my hon. Friend will make a speech of his own in this stand part debate—I will not get odds on the wager, but I am prepared to make it. If he indeed makes a contribution, I suspect that he will develop that point at great length.
To return to the point that my right hon. Friend Mr. Duncan Smith made, we can all agree that for the Government to come to the Committee and say, in effect, "Trust us," will simply not wash.
There is no doubt that the treaty is basically the constitution. As we have heard over the past few weeks, there are elements of the proposals that are definitely constitutional in nature, which is why we will back a referendum. However, I have yet to hear a single example of how anything in the clause or the terminological changes in the schedule would cause UK law to be usurped by EU law, and I would therefore be grateful to hear one.
I think that the hon. Gentleman was here in the earlier debate, when my right hon. Friend the Member for Wells gave quite an extensive list of when that would happen—I see a number of heads nodding in the Chamber. Was the hon. Gentleman here then?
In that case, the hon. Gentleman will know that a list was given, and he can read it in Hansard if he wants to. I have already given one example of how the provisions can interact with the common foreign and security policy, so I hope that that satisfies him. However, if he wants more detail, the nice people in Hansard will print the debate out and he can read it over his breakfast in the morning.
I thank my hon. Friend for his help.
I think that we have, by now, made the point that a large number of changes would go through almost automatically if clause 3 were allowed to stand part of the Bill. As we have also heard, as a result of the clause as drafted—which, unfortunately, we have been unable to amend—many changes to United Kingdom law would overwhelmingly go through under the negative resolution procedure. That would make it easier for the Government to put through that large number of changes than would be the case under the affirmative resolution procedure, and more difficult for Parliament to scrutinise them effectively.
Amendment No. 39 would have improved the Bill by compelling the Government to bring the orders before Parliament, so that we could examine whether the changes were as innocuous as the Government claimed. We have also discussed amendments Nos. 55, 56 and 57. They would have taken out subsection (6), which allows for a blanket change in the terminology of our domestic legislation without any specific discussion at all. This part of the Bill could make wide-ranging changes, yet, for the most part, the Government have not really explained the extent of the potential alterations. They have attempted to give the impression that clause 3 is a tidying-up exercise to keep things neat and tidy. They have not explained adequately the range and extent of the changes that could take place if clause 3 were to stand part of the Bill.
The clause sets out wide-ranging changes to the terminology of our domestic legislation. As we have seen, the Government will be given powers to make further orders under the clause by negative resolution. Those orders, as well as the blanket power given under clause 3 (6), could have wide-ranging effects on the obligations that our citizens are under, and they should therefore be scrutinised in greater detail by Parliament. Given that clause 3 would lead to such changes being made with very little scrutiny, I propose, in response to the Minister's comments, that clause 3 should not stand part of the Bill.
It has given me great pleasure to be able to support Mr. Francois and some of his colleagues in the votes tonight, be they on the procedure motion, or on amendment No. 39. I disagree, however, with his position on clause 3 stand part. I do not believe that it is a stalking horse or that it contains all the risks that he outlined. I have looked at it, and it seems to be very much an issue of terminology qua terminology, rather than the behind-the-scenes creator of major constitutional change that he fears.
As the hon. Gentleman knows, the Maastricht treaty introduced the European Union and its pillar system. It is clear that that system is collapsing somewhat under Lisbon, although not quite as clear as he and some of his colleagues have suggested. That is particularly the case in respect of the UK. Justice and home affairs are being merged into pillar one for all member states, but that will not affect the UK in the same way, because of the UK's opt-ins. We debated this matter when we looked at justice and home affairs, and we really carried the day during that debate. An extraordinary aspect of the Lisbon treaty is the fact that the Government negotiated not only opt-ins for new areas of justice and home affairs such as police and criminal justice co-operation, but new opt-ins for areas of justice and home affairs in respect of which powers had already been given away in previous treaties, particularly Maastricht and Rome.
The thing that is increasingly troubling me about the Liberals' position on this is that, although they are prepared to make minor forays into supporting us on the less important amendments, they will not support us on clause stand part. I would be grateful if the hon. Gentleman could deal with this point, because I get the impression that they are doing that because they want their election addresses to make it appear that they had opposed some aspects of the treaty. They want it to look as though they did not really want it, but that they went along with it because they are in favour of a federal Europe in principle.
That is quite extraordinary. The fact is that we all voted for the Bill on Second Reading. In my party, we are all pro-European, unlike the hon. Gentleman. It is no secret that we disagree with him on almost every aspect of European Union policy. That is not something that we attempt to hide.
Well—[Hon. Members: "Ah!"] Whether they abstained because they were not here or because they deliberately did not like it— [ Interruption. ] I have to say to the hon. Gentleman that I noticed quite a lot of his colleagues voting for the treaty, which was completely against his Front-Bench position, so he ought to be very careful when talking about which way different parties' MPs voted on Second Reading.
There is a danger that I am going to be diverted from the issue. I just want to finish my point on justice and home affairs and the way that that relates to clause 3. I want to quote Michael Dougan, an academic at Liverpool university, who has talked about how the justice and home affairs issues will be changed under the Lisbon treaty. He has said:
"The combined effect of those provisions would be that the UK participates in the Area of Freedom, Security and Justice to a lesser degree under the Lisbon Treaty than it does under the existing treaties."
Observations such as those give the lie to some of the concerns that people, particularly those on the Conservative Benches, have raised. It is simply not the case that we would be giving away all the UK's powers in justice and home affairs—quite the contrary.
Like so many others of his view, the hon. Gentleman constantly refers to Europe, rather than to the European Union. He says that his party is "pro-European". Well, I am very pro-Europe, but I am not in favour of the imposition of the European Union on the majority of the states of Europe. That is a serious distinction that he ought to bear in mind.
If the hon. Gentleman wants to imagine a Europe without the European Union, I am sure that he, and others around the House, will do so. I would suggest, however, that it would be a land of fantasy because he would not be able to build a Europe without the European Union.
My final point is on the way in which the common foreign and security policy relates to the pillar system. Although I do not seek to deny that the pillar system is collapsing, as envisaged under Maastricht, it is hard to deny that the common foreign and security policy remains intergovernmental. There is total unanimity on those issues. Indeed, we have debated the matter at length. Clause 2 of the Bill will add the Lisbon treaty to UK law. It will do so, however,
"excluding any provision that relates to, or in so far as it relates to or could be applied in relation to, the Common Foreign and Security Policy".
That is a pretty watertight exclusion.
I do not believe that clause 3 will present the problems that have been envisaged. It seems genuinely to be a tidying-up measure. If other colleagues wish to press the matter to a vote, we will therefore support its standing part of the Bill.
I am arguing that clause 3 should not stand part of the Bill. I believe that, as my hon. Friend Mr. Francois said, the treaty would merge the separate pillars into a unified system and a unified entity. In so doing, it would hand more power over to remote EU officials. It would put power over consumer protection, criminal sanctions and judicial matters in the hands of remote and unaccountable EU officialdom. That process of aggrandising EU officialdom is deeply flawed.
Some honestly argue that we should pass these powers to remote officials and that doing so is a good thing, but I do not see how it can possibly be argued that handing more power to remote EU officials can be a good thing, given how badly those officials have exercised such powers as they already have. Before we could justify giving EU officials more power, we need to ask why such officials, who lack proper democratic accountability, have been so disastrous at managing such things as the common fisheries policy and so disastrous at regulating our economy, thereby subjecting our small businesses to so much additional regulation.
It is often suggested that the treaty somehow democratises the EU. For example, the idea has been put about that it will give some sort of right of initiative, which will somehow make EU institutions more democratically accountable. That is very far-fetched. Far from making the EU more democratic, it makes it a technocracy, in which decisions are in the hands of unaccountable officials. If people are so convinced that the treaty will improve the EU and make it so much more democratic, surely we should have a referendum on it and let the people decide.
We recently saw how private polling in referendums held in a number of constituencies showed an extraordinarily high number of ordinary people wanting a referendum and being very opposed to this treaty. It is precisely because of provisions such as clause 3, which are about the aggrandisement of power among EU institutions, that people feel so alienated and hostile to the Bill. It strikes me as extraordinary that in many constituencies, more people should oppose the treaty in these referendums than bothered to vote in the last set of European elections.
I conclude my comments by saying that in the two or three short years that I have been an MP, I have noticed how the alienation and contempt of voters for the entire Westminster political process is growing. It is difficult for Members, if they are honest, to overlook or ignore the fact that politicians are increasingly held in contempt. The political process is more and more detached from the people it is meant to serve.
There are two reasons for that. The first is the immediate reason that about 90 per cent. of hon. Members in this Chamber promised the electorate a referendum on this treaty, so it looks as if we have reneged on that promise— [Interruption.]—I am saying that it looks as if the majority of MPs has collectively reneged on it. More profoundly, as the House has handed away its decision-making powers and as we have given EU officials more and more responsibility over decisions that affect everyday life, people have increasingly come to see the occupants of this House as parasitical. It matters not, they think, who they vote for, because the key decisions that affect their lives are taken by remote officialdom.
If we wish to restore people's trust in politics and their belief that by voting for us they can materially improve public services, their lives and the country as a whole, we must restore decision-making powers to this House. The clause does not do that; it moves power upwards rather than downwards, pushing power in the wrong direction. That is why we should oppose the clause and the Bill.
There are three reasons why the clause should not be allowed to stand part of the Bill. The first relates to the importance of the clause. My right hon. and hon. Friends have demonstrated that it will have a more substantive impact than first meets the eye. In many respects, the impact may be indirect, but Conservative Members have spelled out at length why the consequences will be quite substantial.
I accept, however, that the clause is manifestly less important than many of the clauses that relate to issues that the House has not debated at all. We spent a whole day debating carbon trading, but only six words of the existing European Union treaties were being changed. Now we have just a part of today to debate this particular clause, which has a multiple of that number of words and probably far greater ramifications. The clause is also manifestly less important than all the treaty provisions relating to immigration, border controls and asylum, which we have not debated at all.
We should not let this clause stand part unless and until we have debated at length, properly and fully those other issues, under other clauses, which have so far passed undebated, and which the Minister intends shall not be debated at all. Precisely because this issue is less important than others, we should not let it get on to the statute book until those more important issues are debated, or we are given a promise that they will be debated.
Secondly, the clause should not stand part because of its opacity. At the very least, it is difficult to understand what it is about and what its impact will be. That is not just because it is necessarily difficult and complex, but because it and the whole structure of the treaty and the Bill are deliberately opaque. Our European partners decided to make the treaty opaque because it had to look different from the constitution, which had been rejected by the electors in France and Holland. Therefore, they deliberately opted for a procedure that would make it difficult for ordinary people, on immediate perusal of such clauses, to understand what is going on. That made it possible for them to say that the treaty is different from the constitution.
Under the law of this country and other countries in Europe, there were two possible routes to implement the constitution. The first was to say, "Let us sweep away the existing treaties and replace them with the constitution, incorporating all the powers of the existing treaties plus several others." That was the original approach adopted—clear-cut and obvious. It was so obvious to the people of France and Holland that they decided that they did not want it, and rejected it.
The Government then went along with their partners, who said, in terms, "Let us achieve the same result through an opaque approach. Instead of saying that we will replace the existing laws with the constitution, let us change the existing treaties clause by clause, bit by bit and word by word until we arrive at a form of words that is exactly equivalent to the constitution." The Government have adopted that route. That is the reason for clause 3, and the pages and pages of changes that it will enact, through its annexes or appendixes.
Does my right hon. Friend agree that the best argument that the Liberal Democrats could seem to muster was that they could not see anything wrong with the clause? They could not say anything positive about it either. We happen to think that some problems might be lurking within it. Given that there is nothing positive to be said about it, does he agree that we should have a precautionary approach and vote against it?
My hon. Friend anticipates my third reason for rejecting the clause—that it is open-ended. It gives the Government power to make changes that they have not yet recognised will be necessary, but that they recognise may be necessary. They do not understand the full ramifications and implications of the clause. That is why it contains subsections that provide the Government with an open-ended power to change the wording of any legislation, as they see fit, to bring it into conformity with the treaty. We should not give them open-ended powers to do things that they cannot tell us about now, in this House, if necessary in a lengthy clause or amendment.
For those three reasons, we should not allow the clause to stand part. It is manifestly less important than other aspects of the treaty that will pass undebated, and we should not allow it to stand part unless and until they are debated. The clause is deliberately opaque, reflecting the duplicitous nature of the whole operation—the introduction of a so-called reforming treaty, which is actually the constitution, lock, stock and barrel. We should not allow the clause because it is open-ended, and the Government themselves do not know the implications that will flow from it.
I shall not detain the Committee for long, but I want to say something about trust, which was mentioned a moment ago by my right hon. Friend Mr. Duncan Smith. We are asking the House and the British public to trust a treaty that is a constitution in all but name. In the narrower context of our debate on whether clause 3 should stand part of the Bill, there are three aspects that I do not think either the Minister or the Liberal Democrat spokesman, Mr. Davey, has addressed correctly.
The debate on the Maastricht Bill was long drawn out, and very divisive for most parties in the House. One of the key aspects of the Maastricht treaty, however, was the existence of the pillars. We were promised that the pillars were safe, and would prevent the European Union from developing into a super-Union. Now here we are this evening, being told by the Liberal Democrat spokesman that the pillars have partially collapsed but "Trust us, it will all be okay."
The British public will not trust Parliament or the Government over the pillars. They will understand from the debates that have been allowed here, and from what has been said in the press, that the breakdown of the pillars means more and more open-ended powers for the European Union, as was said a moment ago. It is hugely dangerous to tamper with pillars that prevent civil servants, and those in the system within Europe, from developing the sort of Europe that they want but the people of the country almost certainly do not.
The other promise made to us—here I make my point about trust even more strongly—was that we would be allowed to take part in line-by-line scrutiny of this huge document, which runs to 328 pages excluding the amendments and annexes. If any members of the general public were willing to pay £30-odd for it, most of them would not understand it. Indeed, the purpose is for the British public not to understand it. It is not open, honest and frank, as we would expect a document dealt with by a British parliamentary Chamber to be; it is massively complicated. It is fundamentally wrong that the Government are forcing it through without our being able to debate it in full, and without fulfilling the promise of all three major parliamentary parties that there would be a referendum on the constitution—which is what this document is.
I have sat through a number of these debates. I wonder whether the hon. Gentleman—who has obviously taken the trouble to read the treaty, as I have—could identify a specific section that his constituents have raised with him, and to which they wish him to object.
What my constituents have raised with me is the question of why the Government promised them a referendum on that document in front of him, and have now firmly refused to give them one. I will take no lectures about what was promised and what my constituents are concerned about. What my constituents are concerned about is the country losing its sovereignty, and ceding it to another institution.
No, I am going to press on. [Interruption.] The answer is no, just as it is when it comes to the referendum that the country was promised.
The position is quite simple. We are being asked to pass a clause many parts of which would mean—as my hon. Friend Mr. Francois said earlier—that more and more legislation would be forced through the House by affirmative resolution, without the debate that is needed, and less and less would be subject to the negative procedure. Why are we doing this? Why is the House not sitting for longer? We are not short of time in which to debate matters such as this. The House does not sit for half as long as it should. My constituents believe that it should sit for much longer, and I happen to agree. Why are we forcing through predictive legislation on which we can have no debate whatsoever? That is fundamentally wrong.
I could not agree with you more, Sir Michael, and it is such a shame that silly comments have come from the Labour Benches.
I have been inundated with constituents' concerns about the future defence of this country and the effect the treaty will have on our armed forces and our commitments to the European army that the EU is trying to set up. We are not able to debate that, sadly, which is enormously undemocratic. When Labour Members bother to stand up to speak later, they will talk about the defence of this nation, something about which my constituents are particularly concerned.
I hope that we will vote against stand part because the clause is such an undemocratic part of the treaty and we should have a referendum on the whole thing.
I had not intended to speak to this clause, but I shall do so as I was unable to speak in the earlier debates.
Today is the first time that I have felt that the Chamber has done its job. It has interrogated the Minister—an old footballing friend whom I congratulate on his courtesy—and we have been able to get to the nub of the issue. I listened to two excellent speeches; one from my right hon. Friend Mr. Heathcoat-Amory and the other from my hon. Friend Mr. Cash, who made two telling points on fine detail, which is critical.
I agree with my right hon. Friend Mr. Lilley that the clause is not necessarily the most important element in the Bill. None the less, we must oppose it for two reasons. First, I agree with my right hon. Friend that previously we have not had the opportunity to undertake the level of scrutiny that was promised to us. I was stupid enough to believe the Prime Minister when he said that we would have line-by-line scrutiny. I did not realise that he meant "line-by-line" to mean two lines, rather than every single line of the Bill. I now know what he meant: we would discuss the title and the end of the Bill, and that would be good enough. I never agreed with the nonsense of the Second Reading debate at the beginning of every day and I refused to speak in them because they have ripped the heart out of what the House is about. I came to speak to amendments on defence to which I had attached my name but I was unable to do so.
One of the important reasons why we should oppose this and every clause is that none of them so far has had enough debate and scrutiny to allow us to give the right attention to detail. Detail is what we do in this place. I have heard it called petty or trivial detail; the truth is that the House is about detail, and the grandstanding speeches that have been made are less important and less relevant to how the treaty will affect our legislation.
The second point was that the clause gives form to a substantial element of change in the treaty: the partial collapse of the pillars, as the Liberal Democrats put it. It seems to me that when a house collapses, it collapses; it can partially collapse or fully collapse, but try living in it afterwards. In this so-called partial collapse, we have collapsed a huge undertaking made at the time of the Maastricht debates. I never believed the Government on the EU anyway, whether Conservative or Labour. I stand by that even today. I think that I was right about this matter. Undertakings were made at the time about what would happen to us subsequently: we were given undertakings that because of the new pillar construct, we would be protected thereafter from any further incursions—the tide had been stemmed and all would be reversed. That cannot honestly be said to be what has happened. Those pillars were pillars not just of the whole process of the EU, but of an argument that said, "We have reached the high point and thereafter all will be changed." We should therefore oppose the clause because it breaks a previous Government's commitment on the EU treaties. The change from the European Community to the European Union is not a minor one; to be fair, Labour Members have not pretended that it was. It is not just a terminological change, but a major change to how everything flows and the legal context.
We should also oppose the clause as it is based on the idea that all that flows from it will come from a kindly Government who will only ever do the right things and make the right changes. I and hon. Friends tabled an amendment to strike out clause 3(6) for that very reason—because the extent of this is almost limitless. Of course the Government will say to us, as all Governments have always said to us, "You can trust us as we have the best interests of the British nation at heart." I am sure that all Governments believe that. I do not think for one moment that the Minister would try to sell the country down the river; he believes that what he is doing is right and that the Government would resist any change. The problem is that there is a natural dimension to this: this whole process of change from within the European Community—now the European Union—has a dimension that overcomes Government resistance. In due course, more and more will change and flow from this, and Governments will go along with it. In fact, we get so casual with secondary legislation that it flows through this place like a river in spate. There is so little that we ever do about it. We nod through measures that we should never nod through. Admittedly, there are good Select Committees that try to pinpoint things that go wrong. Michael Connarty, the Chairman of one such Committee, is present, and I congratulate him. They are, however, like the little boy with his finger in the dyke. The truth is that we will be overcome—in fact, we are overcome. More and more power is taken away from Members of this House and put into the hands of the Government, and exercised in due course on behalf of the EU. Therefore, I do not trust Governments either of my own persuasion or of the other political persuasion when they say, "Trust me."
This House should never trust Governments. That is what we are here for. Why do we sit on these Benches if all we want to do is give way to the Government? We should never trust them for one simple reason. Our history over hundreds of years is bound up in this clause, because it is about us not trusting them; it is about us fighting to take back powers, not about giving them to another body to be exercised via the Government. That is why I feel strongly about the clause, and why we should resist it. It is alien to the entire way we believe we should operate. We were elected here not to trust, but to spell out. Our trust should be placed in the words in front of us, not in what a Government say might be their meaning in 10 years. If we do not believe what their meaning is said to be, but instead believe that they would allow a Government to extend things beyond and far into the future, we should say no. Even if that does not happen, we should say no because that is a power we have no right to give them.
I am pleased to follow Mr. Duncan Smith even though I think he accused me—or Select Committees in general, perhaps—of giving the finger to the Government. I deny the charge, even though I do not deny the temptation.
I recall that the right hon. Gentleman received an award at the end of last year, and that I received one on the same day. I said something then that, funnily enough, he has stolen; I said that I was not a Eurosceptic, but a Government sceptic. That is a healthy thing to be on the Government Benches as well as on the Opposition Benches.
The problem with a lot of these debates is that people make arguments for parliamentary democracy at the highest level—the right hon. Gentleman made a good speech about that—while also saying that we should abandon it and let people have a referendum run by the tabloid press and certain prejudiced people who have such power in this land because of their ownership of multimedia. Such people would distort anything and take things away from parliamentary democracy, which is why I am pleased that we have had so many days of debate on the treaty.
Hon. Members keep coming back to simplified speeches that they can doubtless make to their constituents, but I ask them to read the consolidated treaty, a copy of which I have here. It shows how the treaty on the functioning of the European Union will work. If they did that, they would not be opposed to allowing clause 3 to stand part of the Bill.
I commend Mr. Heathcoat-Amory for his thoughtful amendment. I also commend some of the speeches made about it. We heard discussions about how the Government should bring to the Floor of the House a procedure that would give confidence that Parliament would be engaged in deciding not only whether the right terminology is being used—for example, ensuring that "EC" becomes "EU"—but whether a power should be given away by an opt-in or a decision to opt out. I have put that matter again and again to my Front-Bench team from these Benches and in my Committee's report, and the point has been echoed by contributions by members of the Public Administration Committee. I hope that before the Government finish this procedure they will lay before us clear regulations that we can approve.
Let us consider the origin of much of clause 3. Paragraph 42 of the European Scrutiny Committee's 35th report of Session 2006-07 states:
"The White Paper...refers to...'simplified treaty revision'".
It also mentioned a simplified revision procedure, which should be the substance of our concern. We detailed how the original
"articles IV-444 and 445 of the Constitutional Treaty" provided for that "simplified revision procedure". We called it a constitutional treaty, but it was the treaty for a constitution.
The Committee went on to say:
"The simplified revision procedure would allow a change from unanimity to QMV (except in relation to decisions with military implications or in the area of defence)."
I must point that out to hon. Members who were worried about defence. Neither the treaty for a constitution nor this treaty intended to hand over defence to anything other than a unanimity procedure; there was no intention to go to QMV, and that position remains firm.
I found it strange that Mr. Jenkin spoke about defence, because I had expected him to discuss institutions. The Chair was open to letting him speak. He argued, incorrectly—I tried to intervene on him, but he would not let me—that defence was going to be compromised by this treaty.
"The same simplified procedure may be used to amend all or part of the provisions of Part Three of the Treaty on the Functioning of the Union".
Our concern was that there was no intention to have an IGC to do that, so it would just be done by arrangements with Governments. We said that we were
"concerned that these provisions could allow substantial changes to be made without convening an IGC and so lead to even less transparency in the way the EU is governed, and less accountability of governments to their national parliaments. We ask the Government to outline what safeguards they would put in place to prevent this further erosion of transparency and accountability."
As a result of that conclusion and our interrogating the Minister and the Foreign Secretary, they secured a series of agreements in the protocols on how this Government, and perhaps the Polish and Irish Governments, would have the right to opt-in after a matter was transposed and a clear procedure whereby if we did not like an amendment to something that had been agreed to—in other words, when we had already opted in—we would have the right to opt out or opt in to that amendment.
There were consequences to that. There could have been financial penalties, because the countries that remained in the agreement could have decided that any costs incurred in pursuing an amendment that they had agreed should fall on the UK. We were assured by the Foreign Secretary and his officials that they could never see such a measure being enacted, but the European Scrutiny Committee was concerned that the decision to impose such penalties would be taken by qualified majority voting of the remaining countries, without the UK being allowed to participate. In other words, it would be a court at which we could not make our case.
We summed up the situation as the law of unintended consequences. The Foreign Secretary—and his officials, whom I met separately—argued strongly that we had worked out the deal, that the amendments were to our advantage and that they would lay out a proper timetable for opting in and out. I have asked the Minister about the matter several times in the House. I know that he is burdened down with dealing with these debates, but I hope that someone in the Foreign Office is working on a set of procedures that show how the provisions will be enacted. If that does not happen, we will be taking a leap in the dark, although I believe that clause 3 should stand part of the Bill.
I shall not praise the Chairman of the European Scrutiny Committee, as I have on previous occasions, because I do not want to get him in trouble with his own party. He has touched on an extremely important point, and it shows that his Committee is doing exactly its job of holding the Government to account on points of detail. He has pressed the Minister on the important point of whether we might be fined and I hope that he will give us a definitive answer when he replies to the debate, because the question is fundamental.
I thank the hon. Gentleman. I know that, in trying to help me, he is trying to help the Committee. He is probably not helping me, but he might be helping some Members who do not believe such questions should be asked. I do not expect the Minister to give us a definitive answer this evening, but as I said in a debate last week, I hope that the Government are giving the matter serious thought and will give us a clearly defined answer in regulations. They must give Members on both sides of the House the confidence that in the next five years, every time an opt-in is considered that will change a relationship set out in the agreement, it will be brought to the Floor of the House.
I thank the hon. Gentleman for giving way. He is very generous. In my defence, the reason I did not give way to him on the previous occasion was that I was closing my remarks and we were short of time. We have more time this evening.
I point out to the hon. Gentleman that the European Defence Agency has its statute established by qualified majority voting. That statute empowers its steering board to vote by qualified majority voting. Furthermore, the Council, when establishing permanent structured co-operation, votes by qualified majority voting and can remove a reluctant member of the permanent structured co-operation in that way. My submission is simple: that the qualified majority voting arrangements in defence will inevitably put pressure on member states to agree with things with which they might otherwise not agree. That is an erosion of the veto on EU defence policy.
It is very interesting that the hon. Gentleman picked that example; we have looked at it in great detail, but I am sure that he and all other hon. Members will agree that it has nothing at all to do with the treaty. That agreement already exists under the current treaties: the European Defence Agency is up and running, and we regularly receive reports from it. My understanding—I think that this was what I would have said in the intervention on the hon. Gentleman—is that only where a group of countries decide to act together and one member wishes to leave that arrangement because it finds it too burdensome can the agency decide by qualified majority voting to let that country leave. It is not a matter of expelling someone. I am very clear about this fact; we have studied it in some detail. When a country wishes to leave, it can be given permission to leave by qualified majority voting. That is an arrangement not for all 27 countries, but only for those countries that have already agreed to act together on specific defence-related policies.
Has the hon. Gentleman seen the report of the Foreign Affairs Committee in which it found that the treaty contains five significant changes in defence, including permanent structured co-operation, to which my hon. Friend Mr. Jenkin has just referred? The Select Committee found that there was a change.
Later, we shall debate a number of passerelles—a procedure whereby a decision can be taken by unanimity to adopt qualified majority voting—but that is not what we are talking about at the moment; we are talking about clause 3, which is not a matter of passerelles.
I want to bring the hon. Gentleman back to the point that he made earlier. I could not quite follow what he was saying, but I seemed to agree with him that clause 3 involved taking a leap in the dark—I think that he used that phrase—and that he hoped that the Minister would return with some clarification. Is the hon. Gentleman really saying that he will vote for clause 3 without that clarification, even though he accepts that we are taking a leap in the dark?
The hon. Gentleman did not follow what I was saying. I was referring to matters where qualified majority voting would result if we opted into any provision using the normal Community method, which is qualified majority voting, or when an amendment is made to something that we have already agreed to. In that case, we have the option to opt in or opt out. I have already said several times that those procedures should be explained quite clearly, so that people know how we as the Parliament, rather than the Government, will be involved in making the decisions.
My concern is not so much that such things will be done by statutory instrument—at least that would be something—but that they will be done in Council and all we will get is a report of the deed when it is done, which is often the case at the moment. That is what I am talking about. I do not find the change in terminology in the least bit offensive or difficult; it is a consequence of signing up for the treaty. I believe that the treaty is good for the UK and the people whom I represent, and even the right hon. Member for Chingford and Woodford Green said that this minor consequence is not the most important thing, but it raises the question of procedures—something that the right hon. Member for Wells did very well—and that is what I am concerned about.
I must first take issue with Michael Connarty about the European Defence Agency. He is correct that no member state can be thrown out of the agency, but there is no need to throw out a single member state, because the agency will operate on the basis of qualified majority voting. If there are dissenting voices that represent less than a qualified minority, their views can be disregarded and overridden. That creates a very large thick end of a thickening wedge in European defence. The hon. Gentleman says that the European Defence Agency is not a new institution, but it is now enshrined in the new treaty as an institution of the European Community. The high representative for foreign affairs has a leading role in the agency, according to the statute. Of course, the high representative for foreign affairs is also a member of the European Commission, thus attacking the agency's intergovernmental nature once again.
The European Commission has long had an ambition to create a single market in defence goods, and fundamental to clause 3 is the elimination of the obvious distinction between those matters that exist under the treaty of European Union and those that exist under the treaty establishing the European Communities. The idea that that is a technical change, as the Minister put it, is likely to be misleading—although perhaps not deliberately misleading—to those who wonder how the treaties will affect the lives of citizens in the member states.
I remind the House of what paragraph 2(b) of article 1 of the new treaty says:
"(hereinafter referred to as "the Treaties"). Those two Treaties shall have the same legal value."
That was simply not the case under the previous arrangements. We will now rely on the provisions of the treaty in order to separate matters that were traditionally covered by the treaty establishing the European Community—including the single market, the common agricultural policy and the common fisheries policy—from matters such as the common foreign, security and defence policy. Hon. Members will be surprised to hear that the provisions of the treaty are subject only to the interpretation of the European Court of Justice.
My hon. Friend and I have debated such issues together many times, so he will recall that the key to the European Union's dynamic force lies in the Court, because the Court takes control of elements and, through judicial activism, reinterprets issues and always moves things on in a single direction.
That is exactly right. I remember debating those matters with my right hon. Friend many years ago when the House debated the treaty on European Union, as it then was. The point is that it is impossible to foretell what matters will come before the Court. It is impossible to forecast what issues and disputes will arise on a subject as massively complex and broad as the treaties. We now rely entirely on short exclusions that are written into the treaties. Let me elaborate on that point. The hon. Member for Linlithgow and East Falkirk, the Chairman of the European Scrutiny Committee, exhorted us to read the treaties, so let me say that the exclusion concerned is in article 275 of the consolidated texts. I must say that I find the business of using the treaty of Lisbon numbering very confusing, because when people read this debate once the treaty is in force, if they open the consolidated texts they will not be able to marry up the debate that took place in the House with the treaty that is in force. I hope the House will forgive me if on this occasion I use the numbering as it would be if the treaty were ratified.
Yes, I hear my right hon. Friend saying that the treaty is near to being the constitution. It is worth pointing out that the abolition of the term "European Community", and its replacement with "European Union" throughout the treaties, was the main innovation in the constitution. That underlines one of the European Scrutiny Committee's fundamental conclusions, which is that we are talking about a distinction that amounts to no substantive difference.
Article 275 says:
"The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions."
The problem is that the treaty does not define "common foreign and security policy". The only definition is included in the provisions on foreign and security policy.
The treaty continues:
"However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty."
If hon. Members have become confused it is understandable, because the matter is complex. Article 40 of the treaty on European Union—the European Scrutiny Committee Chairman told us to read the treaty, and I am enjoying reading it—states:
"The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union."
Notwithstanding the exclusion of the European Court of Justice from common foreign and security policy, anything that is included in the treaty on the function of the European Union that overlaps with common foreign and security policy is included in the jurisdiction of the Court. That includes matters such as trade, aid and, as my right hon. Friend Mr. Duncan Smith has said from a sedentary position, competition.
Article 270 on the European Court of Justice refers to the terms and conditions of employees of the European Union, and the boundaries will get blurred. Members of the External Action Service of the European Union will presumably be employees of the European Union, so that aspect of foreign policy will inevitably be tangled up with the European Court of Justice—for example, there could be an international dispute that turns on the employment conditions of an employee of the European Union in the form of the External Action Service. That is one area in which blurring is likely to take place.
Let us remember how the jurisprudence of the Supreme Court of the United States developed on matters such as tax, trade and agriculture. The Supreme Court of the United States has no explicit powers to regulate tax. There is no federal power in the United States constitution that grants taxation powers to the Federal Government, and such powers were obtained by extrapolating the right to regulate trade between the states of the United States of America. On agricultural quantities, for example, there is no federal power in the United States constitution to regulate quantitative restrictions within a state of the United States of America. However, because a court has argued that what is produced in one state affects trade in another, trade provisions have been used to get into another area of the law, which is how the United States became the modern federation that it is today.
The exclusions in these treaties have been expressly drafted to prevent such leakage of jurisdiction upwards to the federal institutions of the European Union, but I fear that it will be difficult to prevent that. Returning to the European Defence Agency, it is clear that many supporters of the EDA dream of creating a single market for defence manufacturers in the European Union. There are specific exclusions that exclude defence from the single market in the existing treaties, which will be carried forward into the new treaties. However, let us face it: what constitutes a defence good as opposed to an ordinary civil good? Let me give an example.
We export Land Rovers throughout the world, and a Land Rover can be a civilian or military vehicle. Many of the parts used for the civilian versions are also used for the military versions. One of the exclusions from the European Court of Justice is trade. I always thought that the application of sanctions against a third country was an act of foreign policy, but the European Union does not count it as such—the application of sanctions is a trade matter, which falls under qualified majority voting and is included in the jurisdiction of the European Court of Justice and enforceable by the Court.
Let us suppose that we had a dispute with our European partners about a major defence contract and they wanted to stop us having an arrangement with a third country. Given the provisions that international sanctions be subject to qualified majority voting, that issue could be included. Civilian parts of the order could be included, even if they were included as military hardware.
I should like to ask the Minister a question, if he will give me his attention. When there are disputes about the treaties, they are routinely referred to the European Court of Justice for resolution except in so far as they are excluded. Yet it is illegal to refer any dispute about the treaties to any body outside the European Union. By rule of the treaties, there are matters of international law that cannot be referred to the European Court of Justice, nor to any other international jurisdiction.
How would such a dispute be resolved? In the end, it is inconceivable that a dispute within the EU about the treaties would not eventually and somehow be resolved by the European Court of Justice. The Court might well exclude itself from jurisdiction, but we would be relying on that self-exclusion. In the boundary areas in which foreign and defence policy overlaps with policy on trade, aid or other issues included in the existing treaty establishing the European Community, it is easy to see how the jurisdiction of the Court could be incrementally enlarged, case by case, as we have seen it operate year after year.
Finally, I wish to return to the question of permanent structured co-operation, given that I was provoked by the Chairman of the European Scrutiny Committee. Qualified majority voting also erodes the intergovernmental character of what has traditionally been dealt with under the treaty on European Union. Permanent structured co-operation is created by a qualified majority vote of the European Council. A member state can be removed from the permanent structured co-operation under article 28E, paragraph 4—I am going back to the other numbering, which shows how confusing it is. The article states:
"If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned."
It goes on to say that such a decision will be taken by qualified majority voting.
Will the hon. Gentleman admit that these voluntary arrangements from which people wish to withdraw may not include all countries of the 27 but those that wish to become involved in such arrangements, and that if some of them then wish to withdraw from those arrangements because they do not have sufficient capacity to meet the required criteria, that is when the provision that he mentioned comes into action? This is not a question of 27 members agreeing to do something together or then being compelled to remain bound by such an agreement or being expelled if they fail to meet the necessary criteria—it is a system to allow people to withdraw from an arrangement when they do not have the support of their Parliament or Government or the resources to participate in the arrangement they had previously agreed. No one can be forced by qualified majority voting to take part in any of the actions that he is outlining.
The point is that a member state that chooses to exclude itself from the permanent structured co-operation or is excluded because it fails to satisfy the criteria to the satisfaction of other members ceases to have a veto— [ Interruption. ] The hon. Member for Linlithgow and East Falkirk is interrupting me—
I am most grateful for your clarification, Sir Michael.
In clause 3, the distinction between the European Community and the European Union is verbally destroyed, so the natural distinction that the Court, or any institution of the European Union, would make between the European Community and the European Union no longer exists, as they become the same organisation.
In mitigation towards the Chairman of the European Scrutiny Committee, will my hon. Friend join me in understanding the frustration clearly felt by the hon. Gentleman and by other hon. Members about the fact that in debating this clause, which is just about names, we are trying to have the detailed scrutiny of defence matters that we have been prevented from having in relation to the rest of the Bill? We feel frustrated because we are not doing our duty.
While my hon. Friend is busy with his documents, does he agree that we have been through this stuff many times over? I would reiterate this point to the Chairman of the European Scrutiny Committee. The moment that the distinction between the two institutions was broken and the courts were therefore brought in on this, we could not, as politicians, assume anything about the future direction. The point that my hon. Friend is making so well is that now, when the Government say, "Trust us", they have no idea how the courts will rule when it comes to a clash over on which side of the argument they should fall.
My right hon. Friend is exactly right.
The conditions for taking part in structural co-operations are very onerous. Article 2 of the protocol says that to achieve the objectives laid down, participating member states shall undertake to
"bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities" and to
"take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces".
If a member state in the permanent structured co-operation does not want to go along with some European policy that is being decided by the European Defence Agency on qualified majority voting, or has decided to exclude itself from a set of decisions that result in the European Union making it its policy to harmonise certain defence policies, it loses the veto, because unless it goes along with that policy, it is not complying with the terms of the permanent structured co-operation and can be excluded from it anyway.
As my hon. Friend said previously, what this House constantly fails to realise, because it has never been the nature of the way in which law is made in this country, is that the European Court of Justice constantly refers back to the protocol. That gives it its sense of direction when a clash occurs, and it will always find its way to that direction. It may temporarily halt, but it will always find that direction. That is why the momentum of the European Union has been guaranteed by the Court of Justice. Those Europeans who legislate say that the protocols are critical. We think that they are general; they say that they provide the sense of direction, and they are right.
Will the hon. Gentleman say which part of defence policy he believes that the Court has jurisdiction over?
I am going to explain it to the hon. Gentleman. The European Court of Justice has the responsibility to adjudicate on what is purely a single market matter, and what is military. Those boundaries will be adjudicated by the Court of Justice and it is only a matter of time before the Court finds the means to regulate what the Commission has long wanted to be able to regulate: the edges of the defence market. I have explained how the protocol also creates a political imperative on member states participating in a permanent structure of co-operation to harmonise their defence policies for fear of being compulsorily excluded from the permanent structured co-operation. These are arrangements—
We may have our differences about the virtues of the European Court of Justice, and I think that the example the hon. Gentleman gives about trade policy—whether something is a civil or defence issue—is quite obscure and tenuous, but leaving that aside, does he accept that not all 27 member states have to be members of the European Defence Agency? Those who join the agency do so because they wish to, and not everyone is obliged to take part. If a member state wishes to leave, or other member states think that that state is not playing ball on the objectives, why should it have a veto?
If a member state chooses not to participate in the defence agency or in the permanent structured co-operation, it is nevertheless bound by the policy decisions of those two bodies, which become the policy of the Union. Under article 11, that state is bound to support the policies of the Union actively and unreservedly in that area. That amounts to the loss of the veto.
It would be significant if all 27 member states were members of the European Defence Agency, which will not be the case, as the hon. Gentleman well knows. Secondly, the fact is that if other member states in the defence agency do not agree, a member state can withdraw or be thrown out. Whether or not that member state has a veto in an organisation that does not have to have 27 members is neither here nor there.
I invite the hon. Gentleman to read article 11, which says—I know it off by heart—that member states shall refrain from any action that is likely to disrupt the policies of the European Union. If the policy of the European Union is decided by six or eight members, that is its policy. Those self-excluded or compulsorily excluded members have no control—
Clause 3 concerns changes of terminology. Is it not another example of how the European Union has run rings round this country time after time? It tries to pretend that these changes in terminology mean nothing, and that they are just technical changes, and Ministers swallow it every time. But it knows why the changes are so important, which is why it insists that such changes are in these treaties, and it uses them in the way referred to by my hon. Friend.
My hon. Friend is absolutely right, and we know that there is a clear agenda behind the changes. Those who created the European constitution, which the Government admitted represented a fundamental change in our relationship with our European partners, have designed this treaty so that it will have virtually the same effect as the constitution, but under the disguise of an intergovernmental arrangement.
The hon. Gentleman has tried to make the same point in several speeches. He tries to delude those outside that people must be involved in the permanent structured co-operation, that they can expelled from it but that somehow they have no control over it. Article 1 of the protocol from which the hon. Gentleman quoted selectively states:
"The permanent structured cooperation referred to in Article 42(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:"
It then lists the provisions. It reads "shall be open to", not "shall be compelled to be part of". Will the hon. Gentleman please desist from claiming that people must join the organisation, that they can be thrown out of it and that, somehow, they have lost all control? The protocol makes it clear that permanent structured co-operation will not contradict any country's priorities in defence policy or undermine people's right to act through NATO for their common defence. It cannot be described as compulsory. If the hon. Gentleman puts that on record now, I shall let him fantasise as much as he likes thereafter.
The hon. Gentleman is guilty of a partial reading of the treaty. The permanent structured co-operation in article 1 of the protocol to which he refers is governed by another article under title V. I shall not repeat it, but permanent structured co-operation is created by a qualified majority vote of the Council. Moreover, such a vote can remove a member that no longer satisfies the criteria that the protocol lays down. The protocol's obligations, which I read out earlier, are onerous.
The hon. Gentleman is right that there is no obligation to be part of a permanent structured co-operation, but that is not the question. The European Union's policy will be decided by those in the permanent structured co-operation. A member state that is in the permanent structured co-operation can participate in the discussion but be outvoted, and a member state that is not in it has no say in what becomes the European Union's policy.
If a member state does not want to be part of that co-operation and any agreement of the European Union to take part in an action outwith it, why should that member state be bothered? In that case, the member state has decided not to commit troops or be involved.