Clause 6 — Parliamentary control of decisions

Orders of the Day – in the House of Commons at 4:46 pm on 4th March 2008.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells 4:46 pm, 4th March 2008

I beg to move amendment No. 48, page 2, line 39, leave out subsection (1) and insert—

'(1A) A Minister of the Crown shall vote against or otherwise reject a proposed decision in the European Council or the Council to be taken by unanimity that would or could create obligations on the United Kingdom, unless Parliamentary approval for the decision has been given in accordance with this section.

(1B) A Minister of the Crown shall vote against or otherwise reject a proposed decision in the European Council or the Council in an area made subject to qualified majority voting by the Treaty of Lisbon, and which would or could create obligations on the United Kingdom, unless Parliamentary approval for the decision has been given in accordance with this section.

(1C) Any decision adopted by the European Council or the Council by unanimity, or in an area made subject to qualified majority voting by the Treaty of Lisbon, shall not create an enforceable European Union right, European Union obligation or an object of the European Union for the purposes of section 2 of the European Communities Act 1972 if Parliamentary approval was not given for a Minister of the Crown to support that decision in accordance with this section.

(1D) This section shall apply notwithstanding section 2 of the European Communities Act 1972.

(1E) In this section, "the European Council" means that European Union institution founded on Article 15 of the Treaty on European Union, and "the Council" means that European Union institution founded on Article 16 of the Treaty on European Union.'.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

With this it will be convenient to discuss the following amendments: No. 286, page 2, line 39, at beginning insert—

'(A1) The Prime Minister may not attend a meeting of the European Council without having laid before Parliament a statement on their negotiating mandate and receiving Parliamentary approval in accordance with this section.

(A2) A Minister of the Crown may not attend a meeting of any configuration of the Council (within the meaning of Article 9C of the Treaty on European Union) without having laid before Parliament a statement on their negotiating mandate and receiving Parliamentary approval in accordance with this section.

(A3) A Minister of the Crown may not vote in favour of or otherwise support any legislative measure under any article of the Treaty on European Union or the Treaty on the Functioning of the European Union that relates to the internal market, if it applies to, or could be applied in relation to, any of the following, unless Parliamentary approval has been given in accordance with this section:

(a) health services provided by any NHS body,

(b) the statutory system of public education,

(c) social housing,

(d) postal services,

(e) public transport.

(A4) A Minister of the Crown may not vote either in favour of or against or otherwise support or oppose any legislative measure under Article 153 of the Treaty on the Functioning of the European Union, unless Parliamentary approval has been given in accordance with this section.

(A5) A Minister of the Crown may not authorise any person to represent the United Kingdom at a meeting of the special committee to assist the Commission in negotiating agreements with international organisations or third countries established in Article 188C of the Treaty on the Functioning of the European Union without having laid before Parliament a statement on their negotiating mandate; and where any person represents the United Kingdom at such a meeting, the Secretary of State shall lay before Parliament a statement on the matters discussed at the meeting, the positions taken by all persons representing the United Kingdom and the outcomes of the meeting, within 30 days of the meeting taking place.'.

No. 47, page 2, line 39, leave out 'may not vote in favour of or otherwise support' and insert 'shall vote against or otherwise reject'.

No. 18, page 2, line 40, leave out from 'following' to end of line 41.

No. 42, page 3, line 20, at end insert—

'( ) The provision of Article 82(2)(d) of the Treaty on the Functioning of the European Union that permits the addition of new aspects of criminal procedure to those which may be the subject of directives decided by qualified majority voting.'.

No. 43, page 3, line 20, at end insert—

'( ) The provision of Article 83(1) of the Treaty on the Functioning of the European Union that permits the addition of new areas of crime which may be the subject of directives decided by qualified majority voting.'.

No. 44, page 3, line 20, at end insert—

'( ) The provision of Article 86(1) of the Treaty on the Functioning of the European Union that permits the creation of a European Public Prosecutor.'.

No. 45, page 3, line 20, at end insert—

'( ) The provision of Article 86(4) of the Treaty on the Functioning of the European Union that permits the extension of the powers of the European Public Prosecutor.'.

No. 46, page 3, line 20, at end insert—

'( ) The provision of Article 42(2) of the Treaty on the European Union that permits the establishment of a common European Union defence.'.

No. 49, page 3, line 20, at end insert—

'(1A) A Minister of the Crown may not commit the United Kingdom to new obligations, or alter the obligations of the United Kingdom, under the following provisions unless Parliamentary approval has been given in accordance with this section—

(a) Article 3 of the Protocol on the Position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, permitting a notification of the wish to take part in the adoption of an act under the EU's area of freedom, security and justice,

(b) Article 4 of the Protocol on the Position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, permitting a notification of the wish to accept an act under the European Union's area of freedom, security and justice,

(c) Article 329 of the Treaty on the Functioning of the European Union, permitting a request to take part in enhanced cooperation,

(d) Article 46 of the Treaty on European Union, permitting a notification of the intention to participate in permanent structured co-operation, and

(e) Article 10(5) of the Protocol on Transitional Provisions, permitting a notification of the wish to participate in police and criminal justice measures with full jurisdiction of the European Court of Justice.'.

No. 66, page 3, line 20, at end insert—

'(1A) A Minister of the Crown may not vote in favour of or otherwise support a decision under any article of the Treaty on European Union or Treaty on the Functioning of the European Union that relates to, or in so far as it relates to or could be applied in relation to, the provision of healthcare services by an NHS body unless Parliamentary approval has been given in accordance with this section.'.

No. 283, page 3, line 20, at end insert—

'(1A) A Minister of the Crown may not vote in favour of or otherwise support a decision under any article of the Treaty on European Union or Treaty on the Functioning of the European Union that sets a target for reducing carbon dioxide emissions from the European Union if it appears to him that the target is not compatible with preventing global average temperatures from rising more than two degrees Celsius above pre-industrial levels, unless Parliamentary approval has been given in accordance with this section.

(1B) A Minister of the Crown may not vote in favour of or otherwise support a decision under any article of the Treaty on European Union or Treaty on the Functioning of the European Union that sets a target for reducing carbon dioxide emissions from the European Union unless international aviation and shipping are included in the target, unless Parliamentary approval has been granted in accordance with this section.'.

No. 284, page 3, line 20, at end insert—

'(1A) A Minister of the Crown may not vote in favour of or otherwise support a decision under any article of the Treaty on European Union or Treaty on the Functioning of the European Union that relates to, or in so far as it relates to or could be applied in relation to, the liberalisation of postal services unless Parliamentary approval has been given in accordance with this section.'.

No. 67, page 3, line 43, at end insert ', and

(c) "NHS body" means—

(i) a Strategic Health Authority;

(ii) a Special Health Authority;

(iii) a Local Health Board;

(iv) a Primary Care Trust;

(v) an NHS trust; or

(vi) an NHS foundation trust.'.

No. 287, page 3, line 43, at end insert—

'(c) "NHS body" means—

(i) a strategic health authority;

(ii) a special health authority;

(iii) a local health board;

(iv) a primary care trust;

(v) an NHS trust; or

(vi) an NHS foundation trust.

(d) "The statutory system of public education" has the meaning defined by the Education Act 1996 (c. 56).

(e) "Social housing" means the provision of accommodation for rent by a local housing authority (within the meaning of section 1 of the Housing Act 1985 (c. 68)), a registered provider of social housing, a county council, or a person controlled by a local housing authority or country council.

(f) "Postal services" means the service of conveying postal packets (within the meaning of the Postal Services Act 2000 (c. 26)) from one place to another by post, the incidental services of receiving, collecting, sorting and delivering such packets and any other service which relates to any of those services and is provided in conjunction with any of them.

(g) "Public transport" means any of the following—

(i) "railway services" as defined by the Railways Act 1993 (c. 43);

(ii) "bus services" as defined by the Transport Act 2000 (c. 38); or

(iii) any service provided by Transport for London.'.

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

It is a relief to return to the Bill after that excursion into the Liberal Democrats' embarrassment, because there are substantial clauses ahead of us and a great many amendments to consider.

I have tabled other amendments in the group as well as the lead amendment, and I shall begin by describing their purpose. They cover the so-called passerelle clauses in the treaty. Passerelle means "bridge" or "gangplank" in French; it is, perhaps, an appropriate term, given the one-way nature of this treaty. The clauses allow alterations to the treaty with no intergovernmental conference and, most importantly, no referendum.

The European Union has learned over the past decade or so that it is always dangerous to ask people what they think, as they often vote no. We remember Denmark voting no to the Maastricht treaty and Ireland voting no to the Nice treaty. In both cases, they were not taken as final verdicts. No votes never are: when people vote no, they are considered only to be interim or provisional expressions of opinion. There is a lack of symmetry here: when people vote yes, that is taken to be a ringing endorsement of the European project, but when they vote no, they are asked to try again and try a little harder. In those two cases, those countries did change their minds in subsequent years, and those treaties proceeded.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My right hon. Friend mentioned that when countries vote no in referendums, they are often asked to try again. Will he reflect on the fact that that is precisely what has just happened in this House? Last November, the House made a clear decision not to have a referendum on whether to be in or out of Europe; the majority was 400. The Liberal Democrats have chosen to ask the House again, and it has come up with almost exactly the same answer.

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The Chairman:

Order. I am sorry to interrupt, but I am at present having some difficulty in seeing these amendments reflected in the opening words of the speech of Mr. Heathcoat-Amory, and certainly in the remarks of Mr. Harper. May I direct the right hon. Gentleman to the terms of the amendment and the group?

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

I will, of course, observe your strictures, Sir Alan, but it is necessary to dwell briefly on the question of referendums because, as I shall demonstrate, the passerelle procedure is an alternative. Therefore, it is relevant briefly to remind ourselves of the history of referendums. I have mentioned the Danish and Irish referendums that were not taken as final, and the same applies to the French and Dutch rejections of the constitutional treaty. In those cases, the electorates were never asked again. They will not be invited to vote on the equivalent treaty of Lisbon.

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Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

Will my right hon. Friend reflect on the fact that the only nationwide referendum in this country was held in the 1970s, following Mr. Benn's campaigning, when an overwhelming majority supported our membership of the European Union? The Eurosceptic element in our political class seems never to have accepted that result and indeed had pointedly ignored it within about two years of the event.

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This is the whole point! 'The little Englanders' will never accept the obvious facts that we are part of Europe, and far better off in the EU than we would be out of it! We must continue to work with our colleagues in Europe, whilst fighting...

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The Chairman:

Order. That is certainly taking us outside the scope of the amendments and getting us ever closer to tomorrow's debate, which we should not seek to anticipate. The right hon. Member for Wells said that he was providing some background. I hope that it will be somewhat closer to the amendments than the one he has painted so far.

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

Indeed, Sir Alan. I shall observe in response only that the European Union has altered out of all recognition since the 1975 referendum. I am not in favour of continuous or frequent referendums. Only when the rules of politics alter do we need to consult the people—I take that from the writings of Tom Paine. He observed that Governments must not make constitutions because they would be writing their own rules. The rules must be approved by the people and politicians can then fight it out, promoting or opposing policies within those rules. That framework is rightly the subject of occasional referendums, and it is about time that we had a referendum on the European treaty.

The people are trying to say something. In these frequent no votes and judgments they are expressing dissatisfaction with the process of European integration. That was picked up in the Laeken declaration of December 2001, when Heads of Government recognised a need for profound reform. In that declaration they proposed not a constitutional treaty but rather a reformed mechanism to bring the European Union "closer to its citizens", to simplify the treaties, to stop the European Union interfering in the minutiae of national life and, above all, to make the process more democratic.

The EU has reached a different conclusion—certainly at the top. Its conclusion is to say no to reform and no to asking the people ever again. It certainly does not want to ask the people of the United Kingdom. Democracy is too chancy and too uncertain in its outcome for the EU, but the process of European integration must proceed by other means. That has relevance to the clause and the amendments. The Lisbon treaty thus includes a self-amending process to obviate the need for future intergovernmental conferences and referendums. That process is the passerelle clauses.

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

Does not my right hon. Friend's amendment touch on the problem? Are not the passerelle clauses a recipe for continuous incremental change in the EU on a case-by-case basis away from the spotlight of IGCs and well away from the spotlight of a referendum? Do not the supporters of those provisions have to dispel the suspicion that they are accelerators in the process of European integration on a case-by-case basis?

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

My hon. Friend is right; indeed, he anticipates my next remark. The rest of Europe has not abandoned the project of ever-closer integration. President Sarkozy has set up a group, which exists despite its being disowned by the British Government, to proceed to the next stage. Only the British Government fondly imagine that this is somehow the end of the process. Those of us who were in this place during the Maastricht debates remember Ministers stating from the Dispatch Box that that treaty was the high watermark of European integration. It is a process, not a destination. The moves towards ever closer union proceed. However, those involved have learned not to proceed by means of intergovernmental conferences, which lead to the danger of national referendums.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I had the privilege of speaking at a conference on Friday, attended by several Members of the European Parliament, including Conservatives and representatives of the Alliance of Liberals and Democrats for Europe. It was addressed by Professor Sir David Edward, who is a judge and professor in Scotland and used to be a judge in the European Court of Justice. Without prompting, he described the treaty as a final act in terms of institutional change. He also said that it would draw Europe into a structure more like a United States-style federation than the ambition of those who wanted a constitution.

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

That may be the view of several commentators, but if one looks at the content of the treaty, one finds that it contains a self-amending process that will take us to the next stage of European integration, without the need—crucially—for the traditional formation of an intergovernmental conference in which the Parliament and public are involved, and leading to a treaty that is then ratified, if necessary, by national referendum. That process had been abandoned in favour of incremental change.

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Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

In light of the comment by the Chairman of the European Scrutiny Committee, the point is that we have been told that every treaty is the culmination of the process. That was not done disingenuously, because every British Government have believed each treaty to be the last stage of further major institutional change. Every time, we come back with exactly the same arguments. The passerelle provision is the final step: there will be no need to come back to make more changes, and that is the problem. In Britain, we constantly believe the best of the process and we fail to realise that the direction was set long before we joined.

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

My right hon. Friend is a shrewd observer of these matters and he is right. It is a fond national myth that each treaty is the last treaty. That entirely underestimates the dynamic that exists in other European countries and, most importantly, in the institutions of the European Union, which always presses us to go further and create, if not a federal Europe—that is not a word I use—but a Europe that takes literally the phrase in the present treaty about "ever closer union". That mandate drives that tendency forward, and there is no doubt that President Sarkozy belongs to that tendency. He has set up a group, which has already met, to clear the way for more powers to be transferred upwards to the European Union.

Those involved have learned, from bitter experience, not to seek the consent of the public at any stage, because of the danger that they will say no. History is littered with electorates that have said no, but instead of listening to the people, a way of circumventing the obstacle is found and there is always another treaty. The new approach is the passerelle provision.

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Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

Does my right hon. Friend agree that the great British public have virtually no idea about the effect that the passerelle measures will have on the future sovereignty of our country? They know that something fishy is going on, but they have no idea of the extent to which our sovereignty is being undermined not just now, but for ever.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells 5:00 pm, 4th March 2008

It is my regret that the instruction to simplify the EU was never carried out. If we had a simpler document in front of us, these matters would be clearer. As Mr. Amato, the former vice-president of the Convention on the Future of Europe, said in a speech in London that I heard, the treaty is designed to be complicated. Those involved have been relieved of the obligation to put the document in front of the people to be understood and debated in a referendum, and so it could build complexity on complexity. It is becoming—indeed, it has already become—a legal document for politicians to be interpreted by other politicians. Of course the public have great difficulty understanding it. It is our job in these debates to try to elucidate what is really happening and to alert people to the true content of the treaty.

I shall not pretend that the passerelle mechanism is entirely new. There are similar measures in the existing treaties, although they have not been used. However, the treaty of Lisbon has 10 new passerelles, which go right across the board and are designed to be used. They are on a much broader scale.

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Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I am grateful to my right hon. Friend for giving way, and I shall not interrupt him again. He has rightly reminded us that the passerelle mechanism is not new; it has been in force for years and years. Does he recall that in the Maastricht debates people were raising all kinds of fears about the way in which it would be used to take away our sovereignty by stealth? Does he accept that that has not happened? Why does he think that it is suddenly going to happen now? Does he not accept that it turned out to be an unfounded fear when the institution was first attacked by people who hold his views?

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

I do not recall the passerelle provisions being the object of great fear at the time of Maastricht, because the Maastricht treaty made little provision for additional passerelle clauses. They have not been used because they are essentially peripheral. My point is that the passerelle mechanism is now widened and deepened and will become an essential element of the treaty of Lisbon.

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Photo of Bill Cash Bill Cash Conservative, Stone

Having taken some part in the Maastricht debates, I can confirm what my right hon. Friend has said. In those days, the mechanism was known as article 235. It was not in any way as pernicious as these provisions, which are associated with changing all the existing treaties and undermining our parliamentary sovereignty by a totally obnoxious and completely unnecessary provision that would allow us to legislate simply by motion.

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

My hon. Friend is right. Indeed, I have a note of the existing passerelles. They deal with such matters as moving the adoption of EU laws on family law to the ordinary legislative procedure. That is not an earth-shattering change to any system. However, the 10 new passerelles in the treaty of Lisbon include three new simplified revision procedures—that is what they are called—to revise the treaty.

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Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I apologise to my right hon. Friend for intervening again, as I know that he wants to make progress. The answer to our right hon. and learned Friend Mr. Clarke is simply that at Maastricht there was not a major complaint about the passerelles, but the precedent was set by their use in the treaty. They sat there, and have now undergone a massive expansion. They are now ready for use. That is the key. It is a process of moving forward, and the passerelles play their part.

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

My right hon. Friend is correct. The phrase "simplified revision procedure" gives the game away. The clauses are designed to be a way to carry out sweeping revisions of the treaty.

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Photo of Peter Bone Peter Bone Conservative, Wellingborough

I am grateful to my right hon. Friend for giving way; he is being extremely generous. Is not the difference between now and Maastricht the fact that, unfortunately, the European people rebelled in the French and Dutch referendums, which led the European elite to learn the hard way? They do not trust the people, therefore, and want to get the treaty through by the back door.

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

I have made the point that when the EU reaches a roadblock, it never retreats or even stops. It finds a way round. In this case, it has done so by bringing in a way of achieving the same result as under the existing treaty without going through the laborious but democratic procedure of forming an intergovernmental conference, arguing out the proposals in public and putting them to national Parliaments or, when necessary, to referendums.

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Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

Does my right hon. Friend agree that, if there were no real intention to use the passerelle mechanism to take on more powers without consulting anybody, it would not be there in the first place?

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

My hon. Friend is right. All the clauses have a purpose. They are not decorative or descriptive, they are there to be used. They have a serious intention and serious content. I hold that the three separate simplified revision procedures, when taken together, would allow just about any change to how the EU defines and implements its policies to be made using the passerelle clauses. That could include the removal of most of the remaining vetoes, with the exception—I want to be fair about this—of treaty objectives for external policy. There could be sweeping changes to the functions, powers and procedures of the EU, including further extensions of qualified majority voting to matters additional to the 51 already provided for.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

The so-called passerelle procedure means that all Governments must give up the veto on policy making so that decisions can be made by qualified majority voting. Does the right hon. Gentleman accept that the Prime Minister has given a guarantee to the Liaison Committee that a decision to give up the veto can be taken only on the Floor of the House? The House must decide to give up the veto before any representative of this Government can vote to do so in the Council.

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

I shall turn later in my remarks, and in debates on other groups of amendments that cover the matter, to the exact procedure that the House should follow in agreeing to such measures. Since the hon. Gentleman is the Chairman of the European Scrutiny Committee, I shall remind him of what his report said about the provisions:

"We are 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".

I know that he takes the matter seriously, because he believes in openness. So do I, and the best openness is to have treaty revisions made in the traditional way. They should be argued out by member states and the Commission in an intergovernmental conference and then put to Parliament to be debated. That procedure has served us well, and it is being abandoned.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I know the case that the right hon. Gentleman is making, but sadly, he does not admit that the Prime Minister's assurance to Parliament that any decision to give up the veto will be taken only in a vote on the Floor of the House is a massive improvement. That was not the position after Maastricht or Amsterdam. Will he not admit that this is the first time that a Prime Minister of any party has assured the House that such decisions will be made on the Floor of the House?

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

I concede that it is a modest advance in the powers of the House that a vote will be required, but I believe that primary legislation is what is needed in those circumstances. I hope that the hon. Gentleman will join me in pursuing the cause of parliamentary democracy and the powers of the House.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

It is not good enough to rely on the Prime Minister's promise that the House will get a vote. He promised the British people a vote on the treaty and has broken that promise, so we should not put any weight on a promise that he has made to a Select Committee.

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

I agree that there is no substitute for primary legislation. That is how we make important agreements, and a late-night, whipped vote at short notice is not an adequate substitute.

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

I know that my right hon. Friend wants to make progress, so I am grateful for his generosity in giving way. Even if we took the assurance of a vote at face value, is it not a question of the signal that the provisions send the rest of the Community about the simplified revision process and further incremental change? What about the political pressure on this country? Do we not have a good example in the treaty itself of the way in which pressure can be brought to bear on the UK by the rest of the Community?

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

My hon. Friend's observation is accurate, and it is emphasised by the point I am about to make.

The Government have allowed in the Bill for parliamentary approval of a sort, but clause 6 does not list all the passerelles inserted by the treaty. The modest concessions made by the Government to give some additional power to the House ignore the fact that passerelles in the treaty are not covered by the clause. For example, article 82 of the consolidated treaty can expand the EU competence over criminal procedures. To me, that is a passerelle clause—it is a mechanism in the treaty whereby by a unanimous decision by a temporary and perhaps transient European Council or Council of Ministers can agree to expand the treaty into new areas of criminal procedure. That is not subject to the mechanism of which the Government are so proud.

To give another example, article 83 permits new areas of crime to be subject to qualified majority voting, simply by a decision of the Council of Ministers, without any parliamentary involvement at all. Article 86 can extend the powers of the European public prosecutor, again, without any vote in the House. My amendment adds to the list of passerelles covered by the Government's procedure the missing passerelle clauses that they do not mention.

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Photo of Bill Cash Bill Cash Conservative, Stone

Earlier, my right hon. Friend mentioned the external action-specific provisions on the common foreign and security policy. I may have misunderstood him, but is it not right that under article 48(7), which falls into that category, the European Council, although decision making must be unanimous, has the power to decide to authorise the council to act by QMV instead? We therefore have a QMV arrangement for CFSP and external action.

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

It is perfectly true that there are additional provisions for majority voting in the field of CFSP. The details are complex, and they are not the subject of this group of amendments, but the thrust of my hon. Friend's intervention is correct.

Amendment No. 44 would subject the setting up of the office of European public prosecutor to the same parliamentary procedure. That is not strictly a passerelle matter, but it should be agreed by the House. The Government have a veto, as they do on all the passerelle clauses, but I contend that a conclave of European Ministers sitting in private should not be able to make treaty amendments, and certainly not without parliamentary approval. However, in the treaty they can agree between themselves to set up the office of European public prosecutor. The Government are against that proposal, and have said:

"We are firmly opposed to establishing a European Public Prosecutor. Unanimity does not mean that this article can be accepted."

They were right about that. Unanimity is not an adequate safeguard, because once provision is made for a European public prosecutor, the presumption is that one day it will be agreed to. To that extent, the matter is prejudged, which is why the Government wanted all references to the European public prosecutor to be removed from the treaty. As with most of their amendments, they failed, so the provision is in the treaty and can be triggered by unanimity. My modest amendment requires that if the Government give way on their previous adamant objection to a European public prosecutor, the decision should have the consent of both Houses of Parliament.

Amendment No. 46 would do the same on setting up a common European Union defence—in other words, a European army. The treaty is confused. Some articles state that European Union defence policy "may" lead to a common defence, whereas other articles state that it "will" lead to a common defence, if the European Council agrees it unanimously. The Foreign Affairs Committee called those provisions "clumsy and ambiguous", and it was right. Indeed, the Government agreed with the Committee, because they tabled an amendment to take out the second reference and to make it clear that that "may" lead to common defence. As is so often the case, they lost the argument. Amendment No. 46 would simply add the additional lock that this House and another place should agree by vote or, as I would prefer it, by primary legislation, if a decision is made to move to a common defence and set up a European army with all that that implies.

Amendment No. 47, which has also been tabled in my name and those of my hon. Friends, would rectify another weakness in the Bill. Clause 6 states that Ministers

"may not vote in favour of or otherwise support a" proposed passerelle clause without "Parliamentary approval". As it stands, however, they could abstain, and if they were to do so, the matter could be adopted, because matters can be approved by unanimity, even if some member states abstain. That is a loophole, and amendment No. 47 would require the Government actively to vote against any such proposal, rather than not voting in favour of it.

In summary, the passerelle clauses extend the self-amending mechanism, of which we have seen very little in the past, and clearly form a key component of the treaty of Lisbon. My amendments would complete the list of passerelles, which is not complete at the moment—the Government should have corrected that matter. They also add similar elements, such as the setting up of a European public prosecutor and a move to a common European defence, and close the loophole that would allow the Government to make such changes by abstaining.

I shall finish by advancing the case for amendment No. 48, which goes further. It would require parliamentary approval—an affirmative vote in both Houses—before agreement to any measures in the European Council or the Council by unanimity or in an area made subject to qualified majority voting in the treaty. That would establish for the first time real parliamentary control over the obligations imposed on this country from the EU. That approach has been adopted by the Scandinavian Parliaments, which literally mandate their Ministers before decisions are taken.

Scrutiny of European legislation in this House is, by common consent, totally inadequate. That was the conclusion of the Modernisation Committee report of some years ago. The Government have now responded to that—again, very modestly and inadequately. We can all see that, even with the new proposals from the Leader of the House, the House really has no power. We are at the bottom of the food chain; we are subjected—members of the European Scrutiny Committee have weekly experience of this—to a torrent of European Union draft regulations, directives and decisions on which we cannot decide in any real way. We have to accept them; all we can do is take note of them.

Amendment No. 48 would disapply decisions passed by unanimity or under the areas of qualified majority voting introduced by the treaty of Lisbon from having an effect in the United Kingdom. The amendment would do so notwithstanding section 2 of the European Communities Act 1972. As a non-lawyer, I am advised that in the Factortame case it was observed that British courts would allow the 1972 Act to be overridden if another statute made clear that its provisions were notwithstanding section 2 of the 1972 Act.

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Photo of Bill Cash Bill Cash Conservative, Stone 5:15 pm, 4th March 2008

May I amplify what my right hon. Friend is saying? The cases of Macarthy's Ltd v. Smith under Lord Denning, of Garland v. British Rail Engineering Ltd under Lord Diplock and of the "metric martyrs" under Lord Justice Laws also make that clear. It is absolutely crystal clear that what my right hon. Friend has just said is right. If, on behalf of voters in general elections, we are to preserve the right of the House to be able to make decisions, it is absolutely imperative that the amendment should be agreed.

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

I am grateful to my hon. Friend, who is a constitutional lawyer, for his endorsement of what I have said.

To be clear, amendment No. 48 would prevent decisions of the European Union having effect in this country if Parliament had deemed otherwise. In other words, if we explicitly directed Ministers to reject proposals resulting from qualified majority voting introduced by the treaty of Lisbon or from a procedure of unanimity, those decisions would be disapplied in United Kingdom law, notwithstanding section 2 of the European Communities Act 1972.

I have discussed a collection of measures to enhance the power of the House and give it real power and influence over decisions made in our name. National Parliaments are the big losers in this entire process. Other EU institutions gained during the negotiations, despite the fact that they should have been reforming themselves. Indeed, the very institutions that are the source of much of the disillusionment with the European Union get the extra powers under the treaty of Lisbon.

The Parliaments' loss of powers is shown by the massive switch to qualified majority voting, which practically removes the veto powers of this House over such legislation. The loss is also shown in the loss of control over the making of international agreements, common foreign and security policy, criminal justice, immigration and asylum—powers on all those matters are transferred from this House to the European Union. That loss of control is most marked in the new division of "competences", Eurospeak for "powers"—the new doctrine of exclusive and shared competence in the treaty.

Amendment No. 48 would re-establish parliamentary control and allow—indeed, encourage—the widest degree of international co-operation when that was required. However, it would do so on the firm foundation of the principle of self-government and the rights of national Parliaments.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I listened carefully to the points made by Mr. Heathcoat-Amory, some of which I agreed with. Amendment No. 286, which is in my name and those of my hon. Friends, addresses similar issues.

I begin with the crisis that seems to be pervading the whole of Europe. It exists between the popular classes—the people of our country and elsewhere—and the political élite. There is clearly a wide-ranging problem, and my amendment attempts to address it. There is a feeling among the electorate that the country is changing somehow, that Parliament does not seem to be able to get a grip on those changes and that the changes are not always favourable to the way in which we live. There is a strong feeling that the House of Commons exists to regulate the affairs of the country and to protect the provisions built up by the people of this country over many years. That belief is to some extent negated, however, by a suspicion that the European Union is, in part at least, contributing to changes that many people feel are unpalatable. I suspect that that point of view is not inaccurate.

As I have remarked in previous debates, two kinds of Europe are struggling to emerge, one of which will impact directly on the kind of country that we inhabit in years to come. I would like to see the kind of country in which social provisions are strong, and where the market may have its place but the conditions of life are safety-netted so that the inequitable consequences of free markets do not damage the social fabric. We see such social provisions at work across a range of public services, such as post offices, the health service, council housing and the other areas mentioned in my amendment. Those social provisions, however, for a reason that remains mysterious to many including myself, have been eroded by European Union developments.

It is the latter Europe—the Europe of free competition, open markets and inequity, with its sweeping cold winds of competition and market-driven change—that is gaining greater momentum in the EU. It is eating away at the social provisions that exist, but no one seems to understand exactly how that came about. We have had a glimpse in the past few weeks of how those processes have developed, and how the market-driven model of Europe has come about. My amendment would ensure that even if we do not control the neo-liberal European Union as it develops, people would at least understand how that process is taking place, why it is taking place and which institutions are responsible for the changes.

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Photo of Bill Cash Bill Cash Conservative, Stone

I do not want to dismay the hon. Gentleman by agreeing with him, because that might cause him some embarrassment, but I remember saying in the debates on Maastricht, during an exchange with Peter Shore, that I never thought the day would come when I attacked my own Government for deliberately creating unemployment. I understand where the hon. Gentleman is coming from, although I object to over-regulation.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I was not quite sure by the end of that intervention whether the hon. Gentleman agreed with me or not. I would be more comfortable if he was disagreeing with me.

There is a battle between two conceptions of Europe, and it is the latter one—the free market Europe rather than the social one—that is gaining ground. We have had some glimpses of that and my amendments try to tackle some of those problems.

The Bolkestein directive introduced a free market in services, but nobody has bothered to define the services that should be subject to competition; it is simply stated that competition in services should be secured throughout the European Union. The directive was agreed through the Commission and the Council of Ministers and there was no appropriate way in which our Parliament could exercise judgment and issue caution about the way in which the European Court of Justice might employ it.

The European Court of Justice began to interpret services as including those that, we believed, were protected, especially our national health service. The NHS is the pride of our country and embodies British values of fairness. However, the European Court of Justice, working on the basis of the Bolkestein directive, began to rule that health was a tradeable commodity and should fall within the remit of free and open competition principles, which would fundamentally undermine the way in which our NHS works.

There was a famous European Court of Justice judgment in the Watt case, whereby the court decided that people travelling abroad circumvented the normal processes of the NHS for receiving treatment. Consequently, the Commission decided to draw up a directive to extend the principles of competition to cross-border health. There will be further developments. We are witnessing a process whereby one of the most important social protections that our country has constructed—the NHS—gradually succumbs, without parliamentary debate, to the forces of attrition by the free market, which the European Union increasingly represents. Many of my colleagues and I want that process to stop. If a change in health service provision is to be agreed at European Union level, it should not be done by the Bolkestein directive, an ECJ ruling and the Commission subsequently trying to open the wedge further. It should be debated here first.

The amendment would therefore provide that health should be reserved primarily to our Parliament. In so far as the European Union makes any decision relating to the NHS, such a matter should be debated in the House of Commons before it is determined by Ministers in the European Council. That might not necessarily prevent the erosion of the NHS, but it might at least explain to our citizens how our NHS changed.

I would resist any marketisation of the NHS, as would many of my colleagues. However, there is currently no appropriate procedure for this Parliament to debate such matters before a decision is made. That troubles me deeply and begins to explain the gulf between our citizens and our Parliament. Our citizens no longer understand how decisions that affect the social fabric of our country are made.

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Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North 5:30 pm, 4th March 2008

My hon. Friend is making a powerful speech and I agree with every word. He has focused on the importance of nation state Parliaments. We are not debating whether Europe should go for a market or a public service model for health services, but deciding—I hope—through the amendment that each member state should choose for itself the direction it wishes to follow. If we want a public service model, we should choose that and if another state wants—in my view, mistakenly—a marketised, privatised health service, it should be able to choose that. However, such choices should be made through democratic decision at nation state level.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I certainly agree with my hon. Friend's point, although my amendment goes beyond that and says that if any Europe-wide changes are being envisioned, they ought to be discussed here first and be subject to a vote, at least so that the Minister who represents Britain in the European Council can reflect the views of Parliament and so that the people can see that Parliament has debated vital matters that affect the very social fabric of our country.

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Photo of Kate Hoey Kate Hoey Labour, Vauxhall

I am following my hon. Friend's remarks closely. I, too, agree with everything that he has said about the gap between the public and Parliament on issues such as health. Is the situation not the same on another issue that is close to many millions of people—health supplements? People's freedom to choose the health supplements that they want will be set by the Commission and by people who have in no way consulted Parliament or the people of this country on what they wish to do.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

My hon. Friend makes a powerful point and many people in the country will agree with her. They, too, have reservations about how the European Union appears to create legislation that has never been debated in the House of Commons.

I want to speak briefly about the Post Office and the postal service generally. I mentioned the Bolkestein directive, which introduced internal market provisions into services without first ring-fencing public services such as the health service. The same applies to the postal service. Rarely a week passes without some hon. Members or right hon. Members, even on the Treasury Bench, resisting proposals in this regard; I do not see any such Members sitting on the Front Bench now, although it may well be that some have resisted such proposals. I see the Deputy Leader of the House smiling, and I happen to know that the futures of some of the post offices in her area are being considered carefully, but I know, too, that she will defend her constituency's interests fully.

There are regular such debates in this place. It is widely rumoured—I believe that it may be true—that the Government have decided to gold-plate the European directives on postal services and to introduce them in advance of any other nation in Europe. It is arguable, I suppose, that we should force all the others to go down the same path as we have. Another way of arguing, however, is to say that the Post Office is part of our very social fabric, just like the NHS, and ought not to be subjected to the icy winds of competition that we have been discussing.

As we all know, post offices are the centres of many communities, neighbourhoods, villages and towns. Our Post Office, which is one of the prides of our nation, has been subject to change that is perhaps driven by the Government, but which certainly has the support of the European Union. Rather than debate how post offices should be reconstructed retrospectively, it would be far better to carry an amendment such as mine, so that the House could debate any changes in advance and we could explain to our constituents that we had been party to a series of decisions that had led to the decimation of the postal service. I am arguing that the NHS, postal services and other public services ought to be protected, at least by parliamentary debate, before and not after Ministers go and agree to changes that could damage the social fabric of our country.

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Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

I do not recognise my hon. Friend's description of the European engagement with the Post Office. Does he not recognise that the Post Office is losing millions of customers a day? That is the essential driving force behind the reorganisation. However, the Government, almost alone among national Governments, are providing a substantial subsidy—I believe it is in the region of £160 million—

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The Chairman:

Order. It would be helpful if the hon. Gentleman addressed the Chair. There would then be a better chance of his words being captured for posterity.

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Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

My apologies, Sir Alan. I shall reorientate myself.

The subsidy that the Government provide is about £160 million, and it has been agreed by the European Union. So I do not think that the facts square up with my hon. Friend's argument.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I look forward to listening to my hon. Friend explaining to the people of his constituency why the post offices in their area are going to close and what the involvement of the European Union was. The fact is that he is almost alone on the Labour Benches in defending the closure programme. Most of us are spending our time trying to resist it, and we know perfectly well that the European Union has played a role in all this.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman makes an interesting point about Mr. Bailey, whom he described as being almost alone in holding that opinion. Many members of the Government, including members of the Cabinet, are running around the country protesting about the post office closure programme. One might have thought that they would be here supporting the hon. Gentleman's amendment.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I welcome the hon. Gentleman's underlining a point that I have already made.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

No, I will not give way many more times now.

There are certain public services that no one envisaged being subject to the winds of competition from the European Union when the Bolkestein directive was agreed. Those rules of competition are being driven by the Commission and the European Court of Justice, almost against the will of the House of Commons. When these matters were being debated, the House did not have the opportunity to debate them and to ensure that the will of the people was properly heard.

Our amendment proposes that any decision on public services should be reserved to a vote in this House before a Minister makes a decision—in a mysterious way, as is often the case—in the Council of Ministers. It goes beyond that, however, because we also want to secure proper parliamentary approval before a Minister of the Crown goes to the European Union to agree, or disagree, on fresh legislation on workers' rights. How and why the decisions on the so-called opt-outs from the charter of fundamental rights were made is a mystery to many people. It might be a mystery that has been deliberately created by the Government. My hon. Friend the Minister for Europe says that they are an opt-in.

We find an even bigger mystery when we ask exactly what the Government's position is on agency workers. The question of agency workers is an acid eating away at many communities and work places in this country. The Government say that we should wait for European legislation to bring in regulations on workers' rights relating to agency labour. They are widely reported, however, to be preventing agreement at European level on an agency workers directive, although I do not know whether that is true. The Government should come to the House and explain precisely what they are doing in relation to rights at work before they take a position, either for or against legislation. Our amendment seeks to ensure that that would take place.

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

I am following the hon. Gentleman's argument carefully. Is he aware that, under the relevant title of part 3, there is already text relating to some aspects of health policy? Under the treaty, the simplified revision procedure could be applied so as to add to the text and expand the treaty provisions on health. That would then be covered by the ordinary legislative procedure in front of the Council. No matter how this House voted on such health matters, if the proposal were then outvoted in the Council, that would be it: the hon. Gentleman would have the health policy that he is afraid of.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I am concerned that the treaty envisages new competences in certain limited areas of health provision. Health is mentioned once or twice in some other documents: I am worried about it, because we have seen the process and how it works. That is why I want to see health as one of the public services ring-fenced for this House of Commons to debate prior to any decisions being made.

I was talking about workers' rights and there has been some mystification, or perhaps obfuscation, as to how decisions are made on the regulation of the labour market. Once again, it seems to me that the right place for that to be debated first is this Chamber.

We go on to make other proposals on other matters that are clear in the amendment, so there is no need for me to address them, but the amendment makes one final radical proposal that I want briefly to address.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I shall give way to my hon. Friend before I do so.

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

I have to say to my hon. Friend that I like the last five lines of his amendment at the end of proposed subsection (A5). However, will he clarify—perhaps he was about to do so—the meaning of the phrase

"a statement on their negotiating mandate", which appears in proposed subsections (A1), (A2) and (A5)? Is he proposing the sort of situation represented by Lech Walesa in the Gdansk shipyards in 1981 and 1982, when negotiations between management and workers were broadcast through a microphone to mass meetings? That seems to me a difficult way to pursue negotiations. My experience of the trade union movement—I expect it is the experience of my hon. Friend, too—is that we have to be careful how much of the negotiating hand we tip before the negotiations begin. Will my hon. Friend elucidate what the

"statement on their negotiating mandate" means?

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I am familiar with the tactics of my hon. Friend, as I think the House probably is. He is often an expert at tripping up right hon. and hon. Members on the detail of their amendments. However, on this occasion, I think that he has failed adequately to read the amendment, which in no way suggests that the House should mandate Ministers. The phrase refers to the fact that when Ministers go to the Council, they effectively have a negotiating mandate from the Government. If the amendment were agreed, it would be a legal requirement for a Minister to come here first to explain generally his or her negotiating remit. The House may or not choose or even be asked to change that remit, but at least the Minister would be able to proceed in full knowledge of the views expressed in all parts of the House and would be able to take them into account in any debates. Even more importantly, this House of Commons would be able to fulfil its historic role of providing a democratic link between the people and the institutions that take decisions on their conditions of life—often, I have to say, to their detriment, as the social provisions built up mainly by Labour Governments over the last 50 years are rapidly being eaten away by a neo-liberal tide.

Finally—I shall try not to go on speaking for another 10 minutes after saying that—let me deal with the most radical elements of the amendment. I am proposing a new way for the House to relate to the European Union. It seems to me—my hon. Friend Rob Marris raised this in his intervention—that there is a mystery as to how decisions are taken. Frequently, decisions give rise to misconceptions; we have all heard many references to straight bananas. The way to avoid those myths and misconceptions is to have the light of day cast upon those areas. [Interruption.] Indeed, transparency is needed. At the moment, nobody quite knows how or where decisions are taken.

The most radical parts of the amendment are precisely those referred to by my hon. Friend the Member for Wolverhampton, South-West—proposed subsections (A1), (A2) and (A5), which would require Ministers to come to this House in advance of making decisions at the European Council in order to test the views of the House. It does not say how that should be done; it would not have to be done through a Committee of the whole House. I have deliberately left that open for the Government to determine, but the House must regain the right to speak up on behalf of the people of this country on matters that are changing fundamentally—and I would argue often deleteriously—how we live our lives.

By the way, the amendment would not change the treaty in any way, and for its purposes the treaty is accepted. The amendment simply says that the way in which EU decisions relate back to our country should be changed and mediated by the prime democratic institution of our society, which is the House of Commons.

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Photo of Stewart Hosie Stewart Hosie Shadow Chief Whip (Commons), Shadow Spokesperson (Treasury)

The hon. Gentleman refers to the prime democratic authority, and he is talking about Ministers of the Crown, who obviously would have the lead role in any negotiations, but many of the subjects that he and I are concerned about—social housing, education and health—are fully devolved. How does he foresee the devolved Administrations, with their own Ministers and the separate Acts of the Scottish Parliament, relating to the safeguards that he is proposing?

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

The fact that the hon. Gentleman is able to raise the point illustrates the ability that Members representing devolved areas have to debate those issues in this House of Commons. The amendment is not proposing that the House of Commons should pass certain legislation. It simply says that the Minister should come to the House to represent how he or she would take forward the country's interests and explain what he or she intends to do, before agreeing to decisions that begin to unravel many of the social provisions that have made this country a more civilised place.

With those few points—

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I understand that people often deal with principles and have those principles to the fore, but do not often follow the EU and the process—

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The Chairman:

Order. Will the hon. Gentleman address the Chair, because that helps the microphone to pick up his words?

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

For the benefit of the microphones, I certainly will.

Has my hon. Friend taken the trouble to look at the Select Committee on European Scrutiny report on the draft conclusions of the European Council, which is the Council to which the Prime Minister goes and which eventually agrees the policies that will go through? We took evidence from a number of people, such as Sir Stephen Wall, the former Cabinet Secretary, that those draft conclusions should be made available, at least to the scrutiny processes of Parliament, which means the scrutiny Committee of this House and that of the House of Lords, as well as any Select Committee relevant to a policy that is being made.

If my hon. Friend had followed that process, he might have supported it as a method of bringing about what he is trying to achieve, which is giving the House a chance to direct the Prime Minister and other Ministers as to how the House feels about the policies that they are about to agree. The report is on the record.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I look forward to the Minister's reply, and I pay tribute to the work that the Select Committee has done under my hon. Friend's excellent leadership. This country and Europe as a whole face a political and democratic crisis whereby the separation between the ordinary people of Europe—the working people of Europe—and institutions has never been wider since democratic government was installed. Part of the problem is precisely the fact that a tidal wave of change, involving competition and marketisation, is damaging how people live their lives.

The people suspect and understand—it is true—that, to an extent, this House of Commons has been emasculated in relation to the process of ensuring that those social provisions are properly protected. It is imperative that an amendment of this kind is agreed so that, once again, this House of Commons becomes the mouthpiece of the ordinary people of our country. The severe consequences of that crisis have yet to be felt.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I shall not dwell at length on the detail of the various passerelle measures in the treaty, because my right hon. Friend Mr. Heathcoat-Amory dealt with them comprehensively in speaking to the amendment. There are one or two things, though, that are worth putting on the record in relation to the Government's position. Again, and in relation to this part of the treaty, what the Government signed up to is not what they originally said.

All Members were sent a helpful document from Open Europe—"A guide to the constitutional treaty". It is helpful to refer to organisations that have been helpful to hon. Members. The document contains some useful quotes from former members of the Government, made about this section when they were preparing the treaty. Mr. MacShane told the Standing Committee on the Intergovernmental Conference:

"We think that a self-amending constitutional treaty does not make a lot of sense".

He added:

"There is no enthusiasm for the clause in the European Union."—[ Official Report, Standing Committee on the Intergovernmental Conference, 20 October 2003; c. 21-22.]

Indeed, in 2003 the Government's own White Paper said:

"There is also a proposal for a clause which would allow the European Council to vote by unanimity to move any Treaty article to QMV."

It made it clear that the Government opposed anything that would undermine the role of national Parliaments in treaty change.

My right hon. Friend the Member for Wells alluded to remarks made by the Secretary of State for Justice and Lord Chancellor, who was then Foreign Secretary. He said that

"what we cannot have is a situation where even though" this article

"has to be by unanimity, late at night at an ordinary European Council, a decision on one other country's milk quotas is traded for a concession on moving from unanimity to QMV...that is not acceptable."

That, however, is exactly the position that the House will authorise if it puts through the treaty and the Bill without seriously considering some of the amendments that have been tabled.

It is worth reminding ourselves of the extent to which Parliament is removing some of its powers. We in the House—Members on both sides—have made the point while debating the Bill and the treaty that the time available has not been adequate, especially that in Committee for discussing detailed amendments. However, the Bill and the treaty, as my right hon. Friend explained in detail, will remove even those provisions that force the House to debate such matters on the Floor, at least in as much detail as we have been able to debate them during our discussions on this treaty. They will be replaced by a simple motion, moved by a Minister, that will be unamendable and no doubt dealt with during a short debate late at night. That position is not acceptable.

Worse, Ministers—certainly outside the House—in referring to clause 6, which is entitled "Parliamentary control of decisions", have tried to give the impression that what is happening here is a strengthening of parliamentary control. They refer to the fact that the House and the other place will have to vote on a motion to approve some of those changes, neglecting to point out that the status quo is that an Act of Parliament has to be passed to put through treaty changes.

Ministers need to be honest and remind people that the current procedure is that treaty changes have to be agreed at an intergovernmental conference and have to be taken through by primary legislation—an Act of Parliament passed by both Houses. Making it possible for those treaty changes to take place and then be approved by both Houses through a simple motion will weaken the control of Parliament, not strengthen it. A little honesty in that regard would be welcome.

I return to a point that I made in an intervention. The Chairman of the European Scrutiny Committee, Michael Connarty, referred to promises that the Prime Minister made to his Select Committee. I drew attention to the fact that I do not think the Prime Minister's word is worth a great deal since he has broken it over a referendum, but even if we accept his word on that, just to be charitable, he is not able to bind any future Labour Prime Minister. Therefore, the House would be foolish to give away powers, just on the word of a transient Administration who can in no way bind a future Administration. That would be unwise and an unhelpful precedent to set.

I shall not dwell on amendment No. 286, but I want to take up a point made by Rob Marris. When he spoke about mandates and negotiating tactics, he referred to the former President of Poland and the approach that he took in his trade union negotiations. Those negotiations appear to have been reasonably successful—albeit after a number of years—in that he was pivotal in bringing down a Communist Administration and becoming President of his country. If that is the kind of success that a mandate has, perhaps British Ministers could adopt it and push forward a British agenda within the European Union.

I am greatly attracted by amendment No. 47, also tabled by my right hon. Friend the Member for Wells—I hope he will give us an opportunity to vote on it—by amendment No. 18, tabled by my right hon. Friend Mr. Hague, and by two amendments in the next group. Those amendments seek to make it mandatory for Ministers to agree to treaty changes only by means of a full Act of Parliament, rather than through parliamentary motions, which I consider to be an unsatisfactory way of controlling what they are able to do. If both Houses had to undertake the full parliamentary procedure we would ensure that we maintained the status quo, and I feel that—notwithstanding the lack of debate in the House and the inadequacy of the time available—that would be preferable to what the Government propose.

I hope that my right hon. Friend the Member for Wells will press amendment No. 47 to a vote, and I look forward to the debate on the next group of amendments.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee 6:00 pm, 4th March 2008

I am becoming quite accustomed to listening to the speeches of Mr. Harper, and to speaking after him. I should point out to him that the Prime Minister appeared before the Liaison Committee, which consists of the Chairs of all the Select Committees. The Prime Minister does not appear before individual Select Committees, although when he was Chancellor he appeared very willingly before the European Scrutiny Committee. He spoke lucidly and, in my opinion, demonstrated an inventive attitude towards some of the European Union's policies. I am thinking particularly of his ideas about the funding of what were called regional policies when we had a regional policy. I think that if he were ever to implement those ideas, it would be very beneficial to the regions of the United Kingdom They were based on support for innovation rather than the attempts to bolster dying industries that we have seen in the past in many parts of the European Community.

As for the mandate, I am surprised that Members should see a parallel between Lech Walesa and the democratic institutions, and the fall of Soviet communism, but do not see the association between the European Union and the fact that countries wish to join it because they view it as a form of democratic co-operation constituting an alternative to what confronted them under the dominating vertical force of Soviet communism. The European Union is the very thing that helped Lech Walesa to break down the control of the Soviet Union. People speak of the EU as if it were a malicious and malignant organisation, whereas it offers numerous benefits to all those countries—from those that are very near to us, such as Ireland, which was not previously under Soviet domination but was a stagnant economy, to Slovenia, which has 2 million people, currently holds the EU presidency and is doing extremely well in maintaining Europe's momentum.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am perfectly prepared to accept that the present Polish Government have views about the European Union and the extent to which it is helpful to Poland's economic development—that is a matter for them—but I cannot leave unchallenged the hon. Gentleman's suggestion that the Soviet domination of Europe was brought down by the EU. I think it should be put on record that the strength of the Reagan Administration and NATO had quite a lot to do with it.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

As I pointed out yesterday, the defence protocols are very clear. They maintain people's right to work within NATO, and envisage it as a bulwark for what is happening in the EU and the countries within it. I did not say that it was the EU that brought down Soviet domination. People were attracted and motivated by the force of the democratic arrangements in the EU, as has been demonstrated by the succession of revolutions that have taken place throughout Europe since then.

Mr. Heathcoat-Amory, who always makes thoughtful contributions, quoted—as I did yesterday—from paragraph 42 of our Committee's 35th report. It was published on 9 October 2007, before Ministers returned to Europe, under pressure—or encouraged by those who had taken part in evidence sessions and discussions with the—to find a way of protecting the United Kingdom from a simplified revision procedure. They did not bring back an intergovernmental conference mandate because they clearly did not consider that useful, but they did bring back conditions for opting in, along with article 10 to protocol 10 and firm commitments to unanimity of common foreign and security, defence and tax policy. They also brought back the agreement that if we departed from unanimity, we would move to qualified majority voting only through the procedure that we now know as the passerelle.

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Photo of Stewart Hosie Stewart Hosie Shadow Chief Whip (Commons), Shadow Spokesperson (Treasury)

Is the hon. Gentleman suggesting that he prefers the approach he has just described, in some detail, to the "negotiating mandate" position that was described earlier?

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I see no contradiction between those approaches. I think we should focus on how best we can satisfy Parliament that the Government are being scrutinised. Given that a mandating system will eventually be introduced, presumably it will be negotiated by all the parties in the House. The question of what the consultation arrangements will be for the devolved Administrations exercises my Committee frequently, and we must find a solution. Difficulties tend to be caused by the time scale and the capacity of the devolved Administrations, rather than by the House's willingness to take consultation on board. At present, the capacity does not seem to be there or to be developing.

Let me now deal with the relationship between this Parliament and decisions made in the European Union. Some say that "passerelle" can be translated as "gangway". They may be imagining a ship in the modern sense: a fancy big ship, with a large structure that people walk up and down. I prefer to think of the old-fashioned wooden ship which had a gang plank. In the old pirate days people were made to walk the plank, and that seems much more appropriate. When people walked down the plank they would not walk up again, whereas it is obviously possible to walk up and down a gangway. The passerelle is a one-way system. If a country gives up unanimity and adopts qualified majority voting, it is not possible for it to return to unanimity, which is why it was so important for the Liaison Committee to hear the Prime Minister's assurance.

The Prime Minister could have completed his contributions to the Committee without referring specifically to the passerelle, leaving it hanging in the air. However, during his final observations about the way in which the Bill would be presented to Parliament, he said this:

"Can I add for the passerelles, however—you did raise the question of the passerelles and this is a very important issue— you can only decide by unanimity, of course, to move in a passerelle to a different position from where you have been, but I do believe that is a matter that has got to come before the House of Commons."

That was a voluntary statement. The Prime Minister had clearly thought about it earlier, and wanted to put it on record before what is probably the most senior Committee of the House, consisting of the Chairs of all the Select Committees. That was a fundamental statement by the Prime Minister; if we move forward to QMV, we cannot go back, and that move can be made only by a decision on the Floor of the House. That gives the House a say and a chance to debate.

When the Minister is finished with the trials of putting the Bill through the House, I hope that Foreign Office officials will have brought forward proposals—our Committee will certainly have thought about it and made some suggestions—for a structure. The hon. Member for Forest of Dean talked about not taking the word of the Prime Minister; I am sure he was not implying that he would not be sincere. However, we would be putting in place a regulation—a set of rules—that would be voted on by this House, binding future Governments unless they wished to propose other regulations and get them voted through in the House. That would not bind a Government who wished to overturn the regulations, but it would set down a principle that, for me, would say that a future Labour Government would be bound by the same set of regulations as the present one. I take some comfort from that.

On the Post Office, the door has been slammed and the horse has not only bolted but is halfway through the paddock. We agreed earlier than everyone else to liberalise our postal services. The French have now realised that they would not be happy with their service being liberalised and have put the whole thing back to 2011; some countries have put it back to 2013. They realise, I think correctly, that we are destroying the Post Office and Royal Mail by what we are doing. We are fundamentally undermining and damaging not just a great icon of the British way of life, but a great service delivered to the people of the UK. Any argument made in Europe now about phasing liberalisation would find it hard to get a hearing, as what is now called economic patriotism—really obstructionism and protectionism—is back on the agenda in Europe. We cannot do anything about our postal service, but we are signalling that it is all right for other countries to deny us the right to go into their liberalised markets, which I believe to be the way forward.

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

I caution my hon. Friend who, I suggest, is confusing two things: one, the liberalisation of postal delivery, which this country has done prematurely, and two, the sub-post office network, a contentious political issue in the country now. Those two are separate. The former is to do with the European Union; the latter is not.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

They are actually all tied up. The Post Office used to cross-subsidise the postal network, including the sub-post offices, and made a massive profit that was taken consistently by the last Conservative Government as a premium to the Treasury. It was a profitable organisation and was undermined by technology, on the one hand, and, on the other hand, by the policies encouraged by the then Government and by our Government. They said that it was not valuable enough to have a social institution such as the post office in a community, whether an urban one with deprivation or a rural one with sparsity problems. We turned our face away from the fundamental message that the British Government believed in people's communities, and not just the services delivered in them.

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Photo of Robert Smith Robert Smith Shadow Deputy Leader of the House of Commons

Rob Marris made a slight mistake in suggesting that it was Europe that caused our postal markets to end up as they have. We have gone far further, far faster than Europe required and Europe is not requiring the rest of the countries to catch up.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

Enough has been said about that to allow us to move on. Other services mentioned in the amendments—

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Photo of David Drew David Drew Labour, Stroud

Before my hon. Friend leaves postal services, will he give way?

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Photo of David Drew David Drew Labour, Stroud

I thank my hon. Friend, who has largely stolen my thunder; my speech, if called, will be very short. He knows that what he has said was the basis of the Postal Services Act 2000. I was a member of the Bill Committee and we were given all manner of assurances that what the UK did one day, the rest of Europe would follow on and do. Quite simply, that has not happened. Good luck to Europe—it has learned from our mistakes—but does my hon. Friend agree that we ought to be going back to repair some of the damage we have done to our postal system?

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee 6:15 pm, 4th March 2008

I do agree. People will know that despite some difficulties in doing the external work of the European Scrutiny Committee, we do get to debate these matters with our colleagues in COSAC, the committee of all European committees. Significantly, about a year ago a senior senator—probably the equivalent of Lord Grenfell here—Senator Haenel, talked about the danger to the post offices in his area because he saw what was happening to the villages in our country. Suddenly, someone whom I would have said was a very conservative member of the senate became very protectionist in his attitude. There were some heated debates in COSAC, which led to changes in what is now expected from the final roll-out.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I do not really want to — [ Interruption. ]

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Photo of Bill Cash Bill Cash Conservative, Stone

The Chairman of the Scrutiny Committee has almost an obligation to give way in such matters. We are both members of the Committee and my point concerns COSAC. It may be a misunderstanding, or he may have omitted to mention it, but I have a report containing 158 pages of comparisons of the different scrutiny systems of each of the member states, prepared through COSAC. Does he agree that that demonstrates that whatever the deficiencies of our system—they are quite considerable—the fact remains that the sort of thing that my right hon. Friend Mr. Heathcoat-Amory is proposing is absolutely essential for this country? In many of the other countries, there is not only no level playing field, but no playing field at all.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I know of the report that the hon. Gentleman mentions and I was not going to go into the detail of it. The variety of systems reflects the capacity of as well as the interest from those countries in the way they deliver their own scrutiny.

I want to finish by referring to a number of the services that I believe should be considered services of special interest. That is the way Europe is going. I referred earlier to Professor Sir David Edwards, who was a European Court of Justice judge and is now a senior figure in legal and academic circles in Scotland. He made it clear—again, this was a voluntary statement; he was not pressed by a question—on Friday at the British Institute of International and Comparative Law conference that the protocol on services of special interest would, for example, have prevented the forced tender process in which Caledonian MacBrayne had to win the right to deliver a ferry service to the islands of Scotland. He saw many other examples. Health and other services should be argued for strongly by the Government to prevent any attempt to interfere.

Another case was in the Netherlands, where social housing was declared to be against competition policy. That has to be challenged under the protocol on services of special interest. If it was built for a specific social purpose, it should be defended as a social service, like the ferry service to the islands.

On mandating, we have the best system of the non-mandating countries. There is no doubt about that; we talk to people as we go around all 27 member states and those who aspire to come into the EU. We have a good system that is developing and improving. Departments are responding better in terms of reports. We have many suggestions on how we move forward:, possibly by taking evidence in pre-Council scrutiny; possibly by taking evidence from a Minister before they go to the Council. The Prime Minister would be outwith that, but another suggestion would be to use the draft conclusions of the Council that the Prime Minister attends as a public document for scrutiny. We can develop this a long way, but I am not sure that we need to go all the way to mandating. How do we mandate? How would the European Scrutiny Committee be mandated?

Finland gives its Grand Committee the right to discuss with the Prime Minister what he will discuss in the Council, using the draft conclusions. It does not do that publicly; it does not tell the rest of Parliament—it is trusted to do that. I do not know whether any member of a future Government—that is not a Labour Government—will pick up the telephone and say to the Chairman of the ESC, "Something has come up in the Council; do you mind if I vote for it?" I understand, however, that at one point in the Nice treaty negotiations the Finnish Prime Minister was on the phone at 3 am to the Chair of the Grand Committee of the Finnish Parliament to ask, "Can we agree to this or that as they are different from what we discussed in the Grand Committee?" What would happen in such circumstances? Suspicion would fall on the ESC; some would think that, because of pressure applied by various means through the usual channels, the ESC was letting the Government get away with murder, and there would be disquiet in the House. Therefore, as the ESC is currently getting so many accolades, I am not attracted to the mandating system.

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Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

The idea that the Prime Minister would telephone my hon. Friend to consult him on decisions is a splendid one.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I am sure that the usual channels will put that to the Prime Minister. If he has looked at my performances recently, as I have been supporting the Government all the way through our debates against the forces of darkness, he will probably now be more attracted to the idea of doing that than he might have been before they began eight days ago. However, I still do not think that the mandating system is proven enough that it would not be a retrograde step to involve the ESC in it.

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

It is a pleasure to follow Michael Connarty, who is Chairman of the European Scrutiny Committee; I know that he does his work conscientiously and independently. I will not follow him down the route that he has led us along, however. He mentioned the passerelle and said that the word meant a gangplank. That is not quite right. It is a French word, and I have consulted my trusty Oxford French mini-dictionary, which tells me that a passerelle is a footbridge or gangway. I usually use a footbridge or gangway as a means of getting quickly and easily from one place to another. That is exactly what we are being invited to do with the provisions of the treaty.

I support the underlying propositions in the amendments that there should be a higher level of vigilance and a greater degree of parliamentary control over how we use these passerelle clauses. I especially support amendment No. 47 and the propositions advanced by my right hon. Friend Mr. Heathcoat-Amory, who made a most careful analysis of the passerelles in the treaty. He also gave us a brief historical exposition of passerelles. It was, I think, a fair exposition: there have been passerelles before, but not on the scale that they appear in this treaty. Perhaps the best known example of a passerelle was one introduced by the treaty of Amsterdam, which revised the treaty of Maastricht; it made it possible for some parts of the justice and home affairs pillar to be moved to the Community pillar—the first pillar. There was talk of the passerelle being used to do exactly that; that talk came to an end only when it was apparent that this treaty process was under way and it was likely to happen anyway—which it did. It is fair to say that there has been a great deal of incremental change through treaty processes.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My right hon. and learned Friend Mr. Clarke drew attention to a much narrower set of passerelles in an earlier treaty, and said they had hardly been used. However, does my hon. Friend not agree that, even if that had been the case in the past, this House should be very jealous of giving away its powers, particularly when those who are urging us to give them away argue that they will never be used?

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

I will go away and refer to some dusty tomes and study passerelles, but I remember in the Maastricht process our being told that the justice and home affairs pillar would be quite separate and independent and there for all time, and that it was a safeguard against those matters ever being subsumed within the general Community provisions of the first pillar, which related to the market, fisheries policy and other aspects that were already part of the Community method and were under the supervision of the European Court of Justice and the authority of the European Commission.

There has been a great deal of incremental change through treaty methods—through the conclusion of a treaty—and there are a significant number of incremental changes in this treaty. I believe that we have been less than vigilant in scrutinising them—in respect of defence, to take one example from many. The Government must take responsibility for that as they put in place the process for scrutinising the Bill. That is, however, an argument of the past and for another day.

We need to look carefully into how the treaty opens the door to new possibilities for incremental change on a quite different basis and in a quite different way from the already substantial incremental change that we have seen. As my right hon. Friend the Member for Wells said, if these provisions are unamended the Bill will be dispensing with the need for the procedure and paraphernalia of intergovernmental conferences and treaties conducted in the full spotlight of public attention before treaty changes can take place. Under the Lisbon treaty, it will in future be possible to have change without a treaty and all the accompanying paraphernalia—the intergovernmental mandate, the intergovernmental conference and the treaty ratification going before individual member states. All that will go out of the window; in future, we will have change without a treaty, and change brought about on a case-by-case basis.

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Photo of Bill Cash Bill Cash Conservative, Stone

As a fellow member of the ESC, my hon. Friend will recall the recommendation we made in the 35th report. We said that we were concerned that the provisions would bypass the need for IGCs and lead to less transparency and less accountability to national Parliaments. We then asked the Government if they would outline what safeguards they had put in place. The ESC Chairman, Michael Connarty, has indicated that some progress has been made. Does my hon. Friend wish to illustrate by reference to the Bill's provisions just how little progress was made?

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

My hon. Friend is tempting me down not a passerelle, but a cul-de-sac. I am happy to go down it, however, as it is highly relevant to my points. I heard what the hon. Member for Linlithgow and East Falkirk said, and he was right to an extent, but we must remember this: there was no change—or very little change, and only change that was adverse to this country—between the intergovernmental mandate in June and the intergovernmental conference in November. No Community-wide change was brought about in the form of additional safeguards in the treaty itself; there was nothing like that. All that the Government have offered us is what they have put forward as a safeguard before making decisions with which the treaty deals. The Government have not had any negotiating success in building more safeguards into the treaty of Lisbon itself.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

The hon. Gentleman and I obviously have different views on this issue. When the Government negotiate a treaty, they do so in the interests of this country, and not necessarily to make changes for every other country—although some of the changes that we brought forward were followed by Ireland and Poland. Is it not a fundamental safeguard that when there is a veto on something we get an agreement that it can be given away only when this Parliament decides that it approves of doing so? That is a fundamental change. Although the passerelle clauses are in place, if the Government retain the veto, that is the most important safeguard of all. We do not give anything up that we do not want to give up.

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

I have three points. First, historians will have an interesting time analysing the processes by which the intergovernmental mandate came into being at the end of the previous Prime Minister's time in office. Secondly, the Government have had a veto on many of the provisions that now appear in the treaty. There is a long list of examples of the Government's opposing what has gone into the treaty, but such things have gone into the treaty none the less. That happened even though the Government did, in effect, have a veto; they had the arguments, but lost them as part of the overall process.

That has happened time and again, including with the provisions I referred to which took place between the IGC mandate being agreed in June and the IGC in November. The only changes made to the treaty were ones that could only be adverse to this country, because they included penalty clauses on what would otherwise have been an exercise of free will by this country—that is a triumph of negotiation. If any businessman were to bring back only a series of penalty clauses from a negotiation, he would soon be looking for another job. That illustrates the level of failure.

The final and most important point to make in response to the hon. Member for Linlithgow and East Falkirk builds on one of my earlier interventions. He needs to recognise the overall change that is taking place in how the European Union does business, because it sends a signal throughout the European Union about how business will be done in future. We will simply have to get used to the approach. He knows as well as I do how often Ministers come back to the European Scrutiny Committee saying, "We had to reach an agreement on this to make a compromise on the other." That is the way in which business is done in the European Union.

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Photo of Bill Cash Bill Cash Conservative, Stone 6:30 pm, 4th March 2008

Are not decisions taken on a vast range of matters by the United Kingdom representatives? In other words, the proposal says that the Minister "may not vote", but something on the A-list will not be voted on anyway because it will be decided by the Committee of Permanent Representatives. Furthermore, the regulations do not require legislation in this House.

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

My hon. Friend is right. The wider point is that we shall simply have to get used to the fact that this is how the European Union will do business in future. I pay tribute to the hon. Member for Linlithgow and East Falkirk for his integrity and independence, and for the way in which he tries to scrutinise this matter, but we will have to get used to this approach.

My right hon. Friend the Member for Wells mentioned the treaty's wide range of passerelle provisions. I want to focus on three particularly important ones which relate to safeguards in the amendments. Three important additions made by way of passerelle provisions in the treaty will open the door for future incremental change. The first and most important one is the simplified revision procedure, which dispenses with intergovernmental conferences and treaties. It enables changes to be made to certain treaty provisions by a vote in the European Council, following consultation with the Commission—that is a tough provision—and the European Parliament, and approval by member states, in accordance with their constitutions.

That procedure contains a number of safeguards, but it must be beyond peradventure that it is an easier way of making change and that the safeguards put in place are less significant and substantial than the existing ones. I hope that we will not hear the familiar argument, made by the Liberal Democrats in particular, that because some safeguards are still in place, we can overlook the fact that more substantial safeguards are being dispensed with.

I hope that the Minister will admit that the procedure is an easier one for revising treaties. If we wanted to make the same treaty changes under the present arrangements we would have to go through the whole paraphernalia of an IGC at a Council, the agreement of a mandate, the signing of a treaty ratification and so on. The Minister has been fair throughout these proceedings, and I think he is acknowledging that the treaty's procedure is easier.

The much easier procedure covers the whole of part three of the treaty on the functioning of the European Union, and that is the backbone of the treaty from a policy point of view, because it covers a wide range of areas, including health, which Labour Members were most exercised about. They will have to face up to the possibility of decisions on health and changes in the treaty text to enlarge the sphere of the Union's competence in health being made by majority voting in the Council—the health measures are currently decided by the ordinary procedure—and all that that would mean for this country. That is my first example of the operation of a passerelle clause.

A second way in which incremental change can be brought about under the simplified revision procedure is a separate provision that enables the Union to move from unanimity to qualified majority voting in any part of the treaty on the functioning of the European Union, including part three, and in the non-defence parts of the common foreign and security policy, which are contained in the treaty on European Union as opposed to the treaty on the functioning of the European Union. That provision is a still easier way of making incremental change, whereby the move to QMV follows a vote by the European Council, which must be by unanimity, but there is no requirement for constitutional approval in individual states. Instead, a form of negative resolution procedure is provided for under which a change to QMV can be halted if an individual Parliament objects.

My next point might interest the Chairman of the European Scrutiny Committee, because it shows how effective the British Government's vetoes have been in the past. In a former role—I think he was discharging his functions as Foreign Secretary—the Secretary of State for Justice specifically told the Standing Committee on the Intergovernmental Conference at the time that the procedure was "unacceptable and illogical". He was talking about the specific procedure embodied in the Bill. A Government White Paper in 2003 also said that the Government were opposed in principle to the provision, yet the clause is in the Bill.

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

If I have misunderstood the hon. Gentleman, I hope he will correct me. He was talking about QMV provisions in the treaty on European Union. Article 31 of that treaty contains what I have referred to in previous debates as a joker—he will remember that, because he has been an assiduous attender. Paragraph 2 of that article, which is on page 23 of the consolidated treaties, states:

"If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity."

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

I am delighted that the hon. Gentleman has highlighted that, because I am coming to it. I am following the Foreign Affairs Committee's analysis of the treaty provisions. The process that I just described comes under the simplified revision procedure, and it is a different way of introducing QMV to the non-defence parts of the common foreign and security policy. As I described, it includes the safeguard of a form of negative resolution procedure. The procedure that he has just described is a third way of moving from unanimity to QMV in non-defence areas of the CFSP. If he will hear me out, he may try to put me right at the end.

The CFSP already contains QMV. I know that the hon. Gentleman has a bit of difficulty with this, but if he were to read that article 31, he would see that it describes the process. Paragraph 2 of that article in the consolidated treaty states:

"By derogation from the provisions of paragraph 1, the Council shall act by qualified majority".

It then sets out four different circumstances in which the Council will act by QMV. If the treaty says that it is talking about QMV, I do not have to make the point. As he correctly pointed out, it is subject to a safeguard in a later provision in the paragraph, which states:

"If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken."

It may interest the hon. Gentleman to know that the same safeguard appears in the treaty of Nice, except that the Lisbon treaty's safeguard is weaker. The treaty of Nice refers to this process being able to be undertaken by a member state if it has an objection because there is an "important" reason of national policy. The threshold for the exercise of the emergency brake rises in the Lisbon treaty, because the reason needs to be a "vital" one. I suggest to the hon. Gentleman that that is a further incremental change to make the emergency brake more difficult to use and a signal that there will be more qualified majority voting in future.

The same is the case for the separate provision contained in article 31.3, which states:

"The European Council may unanimously adopt a decision stipulating that the Council shall act by qualified majority in cases other than those referred to in paragraph 2."

That provision is not subject to the negative resolution procedure that I have described: it is a straightforward vote by the European Council to move to qualified majority voting. Therefore, under the provisions of the treaty there are two ways of getting from unanimity to qualified majority voting on issues that are not defence, common security and foreign policy matters.

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

I shall certainly give way to the hon. Gentleman, who is an expert in these matters.

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Photo of Quentin Davies Quentin Davies Labour, Grantham and Stamford

The hon. Gentleman has just referred to the mechanism under which the Council can decide that qualified majority voting should operate in a particular matter, but surely that decision would have to be unanimous and this country would therefore have an effective veto. In other words, that mechanism could never be triggered unless we decided that it was in our interests to allow it to be triggered.

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

I do not wish to be unkind to the hon. Gentleman, but I do not think that he has followed the whole argument, because that applies to all the provisions that we are talking about. We are talking about the ways in which we can get from unanimity to qualified majority voting. Unless that is provided for in the treaty itself, the only way to way to go from unanimity to qualified majority voting at present is through a treaty process, such as the treaty we are discussing or the treaties of Maastricht, Nice or Amsterdam. That is the only way that it is possible to move from unanimity to qualified majority voting, unless there is specific provision in a treaty to enable member states to do that. The whole point is—as everybody has said throughout the debate—that the treaty is making it much easier to move from unanimity to qualified majority voting, although it is not doing away with safeguards completely.

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Photo of Quentin Davies Quentin Davies Labour, Grantham and Stamford

As the hon. Gentleman rightly says, it has been a theme throughout his speech that there is something nefarious about a situation in which the Council can decide—by unanimity—to waive unanimity and allow qualified majority voting in particular cases. What is the possible danger to this country in a situation in which we continue to have that veto? That is what he has failed to say. If we have an interest in the change in question, it can go through more rapidly without the various constitutional procedures in the other member states. If we do not wish it to proceed, we veto it. It is as simple as that. There can be no possible damage to this country, only gain, in a new provision of that kind.

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

I do not know how much of the debate the hon. Gentleman has heard, but if he had been in his place throughout he would have heard this argument before. He would also have heard that when the provision was debated at the intergovernmental conference, the Government originally opposed it from pillar to post, for the very reasons that I have just given, but then caved in. We might as well have a provision in the Bill to move from unanimity to qualified majority voting on any subject.

I do not know whether the hon. Gentleman heard the earlier speeches by Labour Members, but his approach will not make them any happier with him— [ Interruption. ] It is probably a good moment for the hon. Gentleman to leave his place.

My concern is that the treaty sends out a clear signal by making it much easier to move from unanimity to qualified majority voting in foreign policy. Why? Also, why is the emergency brake provision being weakened? The answer can only be that the Union foresees more and more foreign policy decisions being taken at a European Union level, rather than a national level. We are moving incrementally towards a European Union foreign policy, and the world will look to the new high representative or EU Foreign Minister, rather than to national Ministers, as foreign policy issues crop up day by day.

It is a step-by-step process that the treaty will speed up, both in foreign policy and in all the other areas of policy occupied or coveted by the Union. Change will be so much easier under this treaty. The treaty of Lisbon will dispense with the lengthy requirements of the existing process. No longer will change be under the spotlight of the treaty process. Change can be made increment by increment and slipped through at any time.

Let us not imagine that that is a change without cost. The power that European Union institutions gain comes at a loss to this House. There is no underground storage facility in the House containing power that is unexercised or undistributed for us to hand out to other member states or to the European Union institutions. Power is exercised either in this House or elsewhere. In this case, more and more power will be exercised elsewhere rather than in this House, where we are answerable to our constituents. We will be the losers, and so will our constituents. They will lose their right to use their vote to change policy and laws that they do not want by changing their Government. On their behalf, we should be ever vigilant about the powers that we pass over to Europe. The more I consider these clauses, the more I am driven to the conclusion that more and more power will move to Europe—

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

I am about to finish my speech. The hon. Gentleman will have a chance to make his own contribution.

We have been less than vigilant on behalf of our constituents not only in scrutinising this treaty, but in spotting how it will make change much easier to achieve. We have not done our job and we cannot look our constituents in the eye.

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Photo of David Drew David Drew Labour, Stroud

I tabled amendment No. 284 and I also support amendments Nos. 286, 66, 283, 67 and 287. It is disappointing that my right hon. Friend Mr. Meacher is not in his place, because he has tabled a good amendment that would require the EU to stiffen its resolve with regard to climate change.

I tabled amendment No. 284 because post offices, for various reasons, are at the forefront of our minds at the moment. It is good to see the Minister for Employment Relations and Postal Affairs in his place and I hope that he was not mauled too much by Lancashire Members this morning. It is important that we consider the context of the closures of sub-post offices, although my hon. Friends the Members for Hemsworth (Jon Trickett) and for Linlithgow and East Falkirk (Michael Connarty) have stolen my thunder somewhat. I do not mind that because it means that I can say less, but it is important that we put on record that some Labour Back Benchers do not sign up to the liberalisation agenda. That is why we have considerable problems with the EU and the whole basis of the internal market.

My hon. Friend the Member for Hemsworth made the point clearly that the Bolkestein directive allowed services to be subject to almost any form of liberalisation, regardless of whether they were national in delivery or otherwise important to a nation state. In particular, the way in which the European Court of Justice can draw matters into its orbit means that nothing is sacrosanct or safe from that threat.

Obviously, I rise to speak about amendment No. 284. There will be those who, as we have already heard, will say that it is too late. The UK has led the agenda, sadly. I mentioned the Postal Services Act 2000—I was a member of the Committee that considered it—when I intervened on my hon. Friend the Member for Linlithgow and East Falkirk. The basis for introducing the Act was, under the ideals of new Labour, the idea that modernisation would give us a head start over our European competitors and that we would be in a much stronger position because, although the British Post Office would go through death by 1,000 cuts, we would be able to go out into wider Europe and to make a difference there. It has been an unmitigated disaster. All we have seen is TNT and DHL—that is, the Dutch and German post offices—coming in and taking more and more of our better services by cherry-picking. We have made no impact whatsoever in Europe. In fact we have come back with our tail between our legs. We have had to try to restore what is left of the British Post Office, but those of us who are fighting the 2,500 closures—nine are proposed in Stroud—seem to be fighting with one hand tied behind our backs because of the inevitability of what we have to do.

Let me make some points about why that is so, why it should not be so and what we might be able to do to stop this madness. No issue is more of a core issue for those of us who represent constituencies that elect a Labour MP, and the subject also unites the whole House. I do not think that anyone who has faced the closure of a post office has been able to go out and feel any confidence in the arguments that have been put forward. I think that I speak the unanimous view of the British public when I say that they wish it was some other way. Even though it may be difficult, it is not impossible.

Let me turn to amendment No. 284 and the subject of postal services and the EU. Of course, the Commission's stated aim is to establish a single market for postal services while ensuring a universal service. That is to be achieved by opening up the sector to competition based on the regulatory framework of the postal services liberalisation packages. A series of directives have been put in place that supposedly make it a fair and level playing field. Of course, as my hon. Friend the Member for Linlithgow and East Falkirk rightly said, it is about asymmetric competition. For good reason, rather than foul, the French have no intention of allowing their postal market to be opened up in the way in which the British postal market has been opened up. We can rant about that. We can say that it is wrong and that we ought to be taking them to various courts in the Community, but in reality they are doing what we should be doing. They are protecting a unique service. We are elected to this place to try to protect and to improve such services, yet we have seen our postal service cut to ribbons.

I know that there are arguments that there is no connection between the delivery mechanism of our postal service and the service from post office counters in branch offices—one of my colleagues made that point earlier. Of course, the strength of the Post Office is its universality and its ability to offer that service across the length and breadth of our country, including across the devolved areas. We know that the strength of the footprint of the organisation is what makes it different.

We have tried to protect such services. My colleague, the Labour MEP Richard Howitt, tried to safeguard existing legal guarantees for free post for blind people, due to the high cost of sending out Braille books and related documents. That measure was defeated, as it was seen as anti-competitive. The European Internal Market and Services Commissioner, Charlie McCreevy, said that the amendment did

"not bring added value to postal users".

It certainly brought value to those with impaired eyesight and those who are blind. That is a negation of service; it is about market madness and liberalisation come what may.

That is the danger, and it is why a number of us have tabled amendments such as amendments Nos. 284 and 286. We want to bring attention to the fact that this House ought to be making the decisions before Ministers go out and agree to what they might have to agree in due course. We are making it clear that there are ways in which we should stiffen our resolve and begin to turn the community away from market liberalisation towards the social economy about which my hon. Friend the Member for Hemsworth waxed lyrical.

That is no more clearly demonstrated than in the area of postal services. That is why my amendment is a key amendment. It will be interesting to know what the two parties on the Opposition Benches think about it. Some of us have sought to see the strength of their arguments and we have voted on numerous occasions to try to protect this country from the worst inadequacies of this treatment. It would be good to see if those two parties might consider supporting these amendments. They could then hold their heads up high when they went back to their constituents, who would, I am sure, be in favour of what we are trying to do. We are trying to protect those key services.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I sympathise with my hon. Friend's points. We have a directive that said that postal services would be liberalised across the EU. We decided to go early, but the French and others have pushed it back by a couple of years. They have not cancelled the directive. Some have pushed it back to 2013, but they have not cancelled it. The logical conclusion of the argument is that we cannot reverse the process—that appears not to be the policy of the Government or of the main Opposition party. Is my hon. Friend arguing that we should send our Minister to Europe to condone the refusal by other countries of Europe to liberalise their markets, thereby denying us the level playing field that we said that we would get?

If the horse has bolted—if we have liberalised, and if this country will not reverse that process—why should we allow other countries to deny us access to their markets? The French did that by refusing us access to their domestic electricity markets until they were threatened with infraction proceedings by the Commission, when they had—

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Photo of David Drew David Drew Labour, Stroud

That was a telling intervention. I tell my hon. Friend the Member for Linlithgow and East Falkirk that the answer is yes. I am happy for those countries to do what we should be doing, which principally is protecting their key services. One does not have to be completely against the single market—although I am, in principle—to see that health services, post offices and other key national services should not be part of the wider European competition.

By saying that we understand why such countries want to protect their services, we put ourselves in a much stronger position to argue without fear or favour—and certainly with no threat of legal action—that we should see such services as different and worthy of particular protection. Otherwise, where will it all end?

The process will inevitably undermine the national health service, which will become the European health service. Our health service is very different from those that operate in most of the rest of Europe, so it is inevitable that ours will have to follow the European model. We already face that problem with postal services.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

So if our postal workers, the members of the Communication Workers Union, are to be denied access to services protected against free competition, and if attacks from state-subsidised alternatives in the rest of Europe take away their jobs, does my hon. Friend conclude that he wants us to sign up to an approval of those barriers being retained in the rest of Europe, just for his pride, despite the effect on jobs in this country?

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Photo of David Drew David Drew Labour, Stroud

More than anyone, my hon. Friend is a great advocate of the importance of the CWU and how it operates. I am happy to go before the CWU and put my arguments. He can put his, and we shall see whose arguments hold greater credibility for the work force. As my hon. Friend the Member for Hemsworth said, there is a huge gap between what the people of this country think about the EU and what the political classes think.

I am bit surprised by the argument of my hon. Friend the Member for Linlithgow and East Falkirk, having heard his earlier point about the need to recognise that postal services are different. We are, in a sense, reinventing the logic that the complete liberalisation of services is inevitable, but we have seen that what has happened in our country has been an unmitigated disaster. People realise that, including those who work in the industry. I therefore see even more reason why the amendments in my name and the names of my hon. Friend the Member for Hemsworth and others deserve to be debated and thought through, so that we can seek to change the EU's mind. For too long, market liberalisation has been seen as the only way in which the EU can develop, but to many of us, it is the wrong way.

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Photo of Bill Cash Bill Cash Conservative, Stone

I support the excellent amendment No. 48, tabled by my right hon. Friend Mr. Heathcoat-Amory. The issue is extremely important, and we have heard from my hon. Friend Mr. Clappison about it. I wish to add simply that we are greatly extending the EU's opportunity to legislate without proper analysis. Furthermore, we are extending its ability to make legislation to matters that would otherwise require a specific treaty, and fast-tracking such legislation without the consent of the people of this country.

The Lisbon treaty is like a Russian doll and has within it the genesis of its own continuation. It is part of the self-amending text that we have discussed, and it is paralleled by the passerelle, to use an alliteration. It is another example of the incubus that undermines the House's ability to legislate on its own terms, and I say to every Member of the House that it is therefore another attack on the voters of this country. Members of the Government are engaged in a direct assault on their own constituents. I have said several times to Rob Marris that bypassing the voters by allowing decisions to be taken that, under our parliamentary system, properly belong to them at the time of general elections, is the ultimate affront.

Clause 6 is a reason for a referendum in itself. There are many reasons why a referendum is required, and we shall go into them tomorrow, but the clause is certainly one of them. It provides an internal mechanism for undermining our democracy. I therefore ask myself what goes on in other countries when matters of scrutiny affect their voters. I do not have time to go into the details, but the bottom line is that the arrangements in other countries are set out in a report produced by COSAC, which shows in 158 pages exactly how other member states legislate in relation to the EU. Those 158 pages give more than ample evidence that they do not examine European legislation properly.

We in this House— [Interruption.] I am saying this to the Labour Members who are conducting a conversation. I had the good manners to listen to them—will they have the good manners to listen to me? The Council of Ministers makes its decisions by QMV, and when we are outvoted there on matters that will be of concern to members of the Labour party as much as to us—if we scrutinise those matters properly according to our constitutional requirements, that is; but I think that our European scrutiny reforms should bring about an improvement—we are having imposed on us legislation that, because of QMV, is not being properly considered in the other member states.

I pointed out in an intervention on my hon. Friend the Member for Hertsmere that the statement in the clause that:

"A Minister of the Crown may not vote in favour of or otherwise support a decision...unless Parliamentary approval has been given in accordance with this section" is complete nonsense with respect to decisions taken in the EU, which have legal effect without having to go through any parliamentary process. The same applies to regulations that come from the European Commission. I want the Minister to listen to this because, as Minister for Europe, he knows well the number of measures that are put on the A-list in UKRep and COREPER day by day and week by week, and introduced without his being involved in any meaningful sense. The provision that:

"A Minister may not vote in favour of or otherwise support a decision" is therefore meaningless, because Ministers are not involved anyway. The entire clause is a total fraud against the electorate and an attack on our democracy, and it bypasses the process of amending treaties by convening an intergovernmental conference under article 48 of the existing treaty on European Union.

The clause is a fraud, and when we examine the nine or 10 provisions mentioned in it and ask ourselves what they will involve, we see that they include social policy, the environment, EU finance, enhanced co-operation and common foreign and security policy—things that the Government had to put in the clause because they knew the importance of them. The next question is to what extent they have provided a satisfactory safeguard for the British people in respect of the disgraceful and fraudulent procedure that has been followed in those arrangements. The short answer appears in clause 6(2):

"Parliamentary approval is given"— in other words, the Minister is relieved of the fact, otherwise he would not be able to vote—

"if...in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty's Government's intention to support the adoption of a specified draft decision, and...each House agrees to the motion without amendment."

We therefore cannot amend a decision once it has been made. The provision is a complete fraud, because one cannot amend decisions without transgressing sections 2 and 3 of the European Communities Act 1972. The measure would be implemented regardless—and I can see the Minister shaking his head—so I would like to know whether it is supposed to override the 1972 Act. The Minister may wish to intervene to say whether it does so or not. [ Interruption. ] He suggests that I should make quicker progress, but I will not let him off—not a chance.

In addition, an Act of Parliament would be needed or, in the case of a treaty proposal, an intergovernmental conference plus, in my opinion, a referendum if one was merited by the inclusion of constitutional requirements. For all those reasons, the fraud that lies within the proposal includes the fact that a motion would simply be whipped through. How often do we deal with motions in the House that are simply at the mercy of the Whips? There is no internal constitutional mechanism in the provision to prevent anything from happening, so it is a fraud. The very least that we should be offered is a free vote—and I do not mean just on this provision, as I want the whole thing to be thrown out. To provide a reasonable safeguard on the use of the mechanism in clause 6, I would expect a free vote to take place before approval was given to any such motion.

I produced a report for the shadow Leader of the House, my right hon. Friend Mrs. May, when she was writing a pamphlet about the European scrutiny process. To some extent, we debated this the other day, but I said that we ought to have, in cases where 150 MPs decided—

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The First Deputy Chairman:

Order. I hope that the hon. Gentleman will confine his remarks to the first group of amendments on clause 6.

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Photo of Bill Cash Bill Cash Conservative, Stone

Of course I defer to your judgment, Mrs. Heal. However, clause 6(1) includes the phrase,

"unless Parliamentary approval has been given in accordance with this section".

When I discuss the question of how that parliamentary approval is given, it is difficult not to deal with the mechanisms that have been provided. However, I think that I have said enough, Mrs. Heal, so I am happy to abide by what you said.

Basically, my concern about the provision is as follows. The Government and the European Union have yet again sought to bypass the arrangements that should properly be followed according to our constitutional principles and voters' wishes to ensure that, rather than an élite arrangement, we have a proper system that we can understand and with which voters can go along.

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Photo of Michael Spicer Michael Spicer Chair, Conservative Party 1922 Committee

Will my hon. Friend say a little more about why he wants a specific reference to the 1972 Act? What is the law behind that? Why can there not be a more general condition?

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Photo of Bill Cash Bill Cash Conservative, Stone

Hopefully, we will vote on that tomorrow evening after the vote on the referendum. It relates to the override of the 1972 Act. I have set out the law—

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The First Deputy Chairman:

Order. The hon. Gentleman is correct: that debate and discussion is for tomorrow evening, rather than this evening.

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Photo of Bill Cash Bill Cash Conservative, Stone 7:15 pm, 4th March 2008

We cannot debate it, but hopefully we will vote on it. I will simply say that the provision is an override of the 1972 Act in accordance with established case law. That is all I need to say. It needs to be precise, clear, express and consistent, so it has to refer to that Act.

May I repeat one last time that under arrangements made under the proposals, other countries will seek through qualified majority voting to impose legislation on us? They operate by decree and/or by a system that is not subject to their parliamentary processes. It is therefore a total farce to talk about this being done according to the constitutional requirements of each member state, as they do not even consider such a process. That is a typical example of the lack of democracy at the heart of the measure. I was disgusted to hear the Liberal Democrats suggest that their proposals for an instruction were based on democracy, as they do not have a clue what the word means.

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

I wish to make two brief points, the first of which relates to something that Mr. Clappison discussed. He gave a rather graphic illustration, and used words to the effect that there is no reservoir of power in the House of Commons on which we can draw. He is absolutely right, but I disagree with him and with his hon. Friend Mr. Cash—and I said this in the Chamber yesterday or last week—about the notion that power is a zero-sum game. I am individual, and I am a member of a political party. My political power is lessened by my agreeing to certain basic rules of the party to which I belong. However, my power is enhanced by my belonging to that political party, as is the power of my constituents, because it makes it more likely that the values for which their representative stands can pass through Parliament. Power is therefore not a zero-sum game: when we enter into agreements, as the UK has done with the European Union, we can gain what I have previously termed leverage. We can have more power overall in the big picture by giving up—and we are doing so in some cases—power. However, it is not simply a zero-sum game.

May I tell my hon. Friend the Minister that I wish principally to speak to amendment No. 286? I am attracted to the spirit of parts of that amendment. If it is pressed to a vote, I will not vote for it, as I will explain, no doubt to the disappointment of my hon. Friend Jon Trickett.

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

I am, however, attracted to the flavour of my hon. Friend's amendment, which would insert additional provisions after clause 6(1), and is connected to Parliament's power and the scrutiny that Parliament can, or cannot, bring to bear on matters relating to the EU, particularly the timing of any such scrutiny or parliamentary oversight, whatever word we use, and whether it takes place before or after a decision by the Heads of State and Heads of Government in the European Council, or by Ministers, or by list A UKReps. I think that we have a deficit in both regards in the House, despite the valiant efforts of my hon. Friend Michael Connarty and his European Scrutiny Committee. We do not scrutinise nearly as much as we ought to beforehand, and the flavour of amendment No. 286 would take us some way towards remedying that. Proposed new subsection (A3) addresses health services, public education, social housing, postal services and public transport; proposed new subsection (A5) refers to a special committee, which would deal with tariff and trade agreements; and proposed new subsection (A4) deals with the provisions of the treaty relating to workers' rights.

As I said earlier in an intervention on my hon. Friend the Member for Hemsworth, one cannot conduct negotiations in a meaningful way that is helpful to our country by tipping one's hand completely before those negotiations start. That is why the wording in proposed new subsections (A1), (A2) and (A5), namely

"a statement on their negotiating mandate", is not helpful. The wording would have been better—I suspect that this is what my hon. Friend meant—if it had been, for example, "a statement on the issues to be discussed".

The thrust of my hon. Friend's remarks earlier today was right. We need better scrutiny and a better idea in advance of the general things that our Ministers, on behalf of the Government and answerable to the legislature, will be saying in negotiations and discussions with representatives of the other 26 member states of the European Union. We do not have enough of that under the current system in the United Kingdom. That does not concern this Government or previous Governments hiding things, although the conspiracy theorists think that it might.

Over the years, matters relating to the European Union have not commanded a great deal of attention in the United Kingdom, apart from, as we have seen in the case of this Bill, among a small group of assiduous hon. Members. With that in mind, we should consider what goes on not only in this House, but in society at large. I studied law in the United Kingdom between 1982 and 1984. That was 10 years after we joined the Common Market and the European Communities, which is now the European Union, but there was no mandatory education on the European Communities—there was a little bit in the course on the UK constitution. Ten years after we joined, lawyers in training, as I then was, were not taught about the European Communities, despite the power of the European Court of Justice, which undoubtedly existed then—I am sure that the hon. Member for Stone would argue that it has grown in the ensuing years. Not enough attention was paid to the impact, much of which was positive, of the European Union in the United Kingdom, and that lack of attention to parliamentary procedures, which amendment No. 286 seeks to address, has continued. That is not to say that there is no attention, so perhaps "insufficient attention" is an accurate description.

If the Minister opposes amendment No. 286 tonight, I will be with him, because the wording is wrong and it includes one or two points with which I might take issue, but its general tenor and flavour are commendable.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

My hon. Friend is making a thoughtful speech—hon. Members would expect me to say that, given that I tabled amendment No. 286—but I want to tempt him to take another small step towards us. In my earlier contribution, I referred to agency labour. Does he know either precisely or in general terms what the relevant Minister is negotiating behind closed doors in relation to the agency workers directive in Europe? If he does not know—I am sure that he does not know, because none of us really knows—would it not be a good idea for the Government to lay out their general position and allow it to be subject to scrutiny and debate in this House?

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

Even I do not know the Government's position. I say that because the Minister for Employment Relations and Postal Affairs, who is responsible for the matter, is my parliamentary neighbour and friend in addition to being my hon. Friend. I do not know the Government's position, although I have discussed the matter with him and urged movement by the Government.

I do not want to bore the House, but I have difficulty with the word "mandate" in the amendment. However, I agree with my hon. Friend the Member for Hemsworth that we should know what is up for negotiation before the Minister goes to Brussels. We must clarify and tighten up the scrutiny of the legislature over the Executive both before such negotiations take place and, as amendment No. 286 states, after such negotiations have taken place, which would allow clear reporting to all hon. Members. That would allow us to keep an eye on what the Government are doing in the name of the legislature and in the name of our country.

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Photo of Jo Swinson Jo Swinson Liberal Democrat, East Dunbartonshire

It is always enjoyable to follow Rob Marris. I feel like calling him my hon. Friend, because I spend more time with him than with some of my hon. Friends in the Chamber these days.

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Photo of Jo Swinson Jo Swinson Liberal Democrat, East Dunbartonshire

I have hon. Friends with me today, which is welcome.

Parliament should be involved in the balance of decision making between the UK and the EU. Today, we must consider the details of Parliament's role, including how many and which decisions should be addressed by Parliament. At the same time, we should not impose a huge bureaucratic burden that stalls any kind of process both in this House and the EU. We also need to consider how Parliament should decide such matters. The discussion on how it should decide such matters will be addressed by the second group of amendments, so I do not intend to stray into that territory. Suffice to say, there is some merit in the suggestions about greater scrutiny. Indeed, the proposal on passing an Act of Parliament might allay the concerns expressed by various hon. Members that the Bill would give us weaker controls than are currently allowed for.

Many hon. Members have expressed concerns about the passerelle clause. In particular, the right hon. Members for Wells (Mr. Heathcoat-Amory) and for Chingford and Woodford Green (Mr. Duncan Smith) have warned us that the clause is not benign. They gave us the history of previous treaties on which it was stated that there would be parliamentary approval. Although I do not agree with the extent of their scare stories, I think that Parliament should have the right to decide. I therefore welcome the Government's recognition of that point in clause 6(1)(a), which states:

"A Minister of the Crown may not vote in favour of or otherwise support a decision under any of the following unless Parliamentary approval has been given in accordance with this section".

That is followed by a long list of the different areas to which that provision will apply. Some of those areas are sensitive, particularly clause 6(1)(c), which concerns

"Common and Foreign Security Policy".

When parliamentary approval is sought in such cases in the future, it will be incumbent on Ministers to make a strong case as to why further moves to qualified majority voting would be appropriate.

I reiterate that, particularly in less sensitive areas, we do not want to create such a bureaucratic burden that progress is stalled within the European Union, although I suspect that that is the motivation behind some of the amendments. In particular, amendment No. 48, which was tabled by the right hon. Member for Wells, proposes that every decision in the Council should be subject to approval in this place. That is a recipe for paralysis, which some hon. Members may want to see, although I for one do not. Amendment No. 48 makes no sense, because it seeks to establish parliamentary approval for decisions that are currently subject to qualified majority voting. That would effectively reinstate the veto in those areas, which is clearly nonsense and would wreck the treaty.

Amendment No. 286 was tabled by Jon Trickett. I suspect that he and I have different views about the benefits of market liberalisation—I am not a fan of protection—but the provisions in his amendment on health services and social housing concern matters where we do not necessarily want European interference. However, we are in a single market, and when it comes to issues such as postal services and transport, we need to recognise that that can be beneficial. We do not want this House to second-guess every decision in those areas. The hon. Gentleman did not take my intervention. I wish he had—he was only too keen to take one from Mr. Harper; I am not sure what that hon. Gentleman has that I do not. If the hon. Member for Hemsworth had taken my intervention, I would have told him that, unlike some hon. Members, I do not think that we can blame the EU for what has happened to the Post Office in this country. He would be far better off if he directed his comments to his own Front Benchers and at their undermining of post offices through the scrapping of the pension book, the removal of Government services and the heavy-handed way in which they have been forcing benefit claimants to receive direct payments instead of using post offices.

The hon. Gentleman's amendment was interesting in that it suggested at various points that a statement on the negotiating mandate should be laid before Parliament. There have been genuinely interesting exchanges on the merits or otherwise of that proposal. Like the hon. Member for Wolverhampton, South-West, when I first read the amendment I was very much of the view that if we were negotiating a position, the last thing that we would want to do would be to lay out all our negotiating points in public on the internet so that others in the European decision-making process could see exactly where our lines were. There are such potential problems with the amendment, although I have to say that I like the concept of the democratic link; it is important to try to ensure that there is proper scrutiny in the House and that decisions are therefore closer to our constituents.

There was a suggestion that, although having the negotiating statements in public would be problematic, some other House procedure—perhaps having the discussion in a private sitting of the European Scrutiny Committee—might be a way around that issue. However, I did not detect a great deal of enthusiasm for Michael Connarty to be receiving telephone calls from the Prime Minister at 3 am as various aspects of EU policy were negotiated. Perhaps that is not the best way forward. I am sure that, given the brains in the House and their knowledge of different parliamentary procedures, there is some way of finding an opportunity for greater scrutiny without laying all our cards on the table so that our EU partners know exactly what we are going to do.

Initially, when I read amendment No. 47, I thought that the change in wording from

"may not vote in favour of or otherwise support" to

"shall vote against or otherwise reject", was an issue of slight semantics and that the two wordings essentially meant the same thing. Obviously, the issue is whether an abstention would allow something through. I confess that I am no lawyer, but to my mind if abstaining led to something being implemented into law, would that not be conceived as "otherwise supporting"? However, even if that is the case—as I say, I am no lawyer—the amendment at least makes the issue crystal clear and so is perhaps worthy of support. Furthermore, let us face it—if the amendment listed areas that the Government already recognise should be proceeded with only under parliamentary approval, I would be intrigued to know the Government's objections.

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Photo of Mark Francois Mark Francois Shadow Minister (Europe) 7:30 pm, 4th March 2008

I was listening carefully to the hon. Lady. Do I take it from her remarks that if amendment No. 47 were pressed to a Division, she and her colleagues would be minded to support it?

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Photo of Jo Swinson Jo Swinson Liberal Democrat, East Dunbartonshire

That is certainly my state of mind at the moment. The Minister has not yet spoken or given us a wonderful reason why making the issue clearer is not a good idea. I look forward to hearing him and seeing whether he can convince me; he will certainly have to work hard.

Amendment No. 18, which was tabled by Mr. Hague, does not seem so sensible. According to my reading, to leave out the option of parliamentary approval for all the areas listed would effectively ban any future moves to qualified majority voting, any use of the passerelle and any move to ordinary legislative procedure—at all, in any circumstances, ever. That does not seem sensible; it is symptomatic of the blinkered and isolationist view on Europe that today's Conservative party seems to take. It is unable to conceive of any future circumstances in which any of those things might be in the UK's interests. Let us bear in mind that we cannot predict the future. Clause 6(1)(f) is about measures on the environment; if, at some future point—to help tackle climate change and after approval by this House—it was in our interests to ease the possibilities for moves in Europe to protect the environment, doing so would be a good idea. Amendment No. 18 cannot be taken seriously.

I have sympathy with amendments Nos. 42 to 46, which, again, would increase parliamentary scrutiny on a variety of issues—moves to qualified majority voting on criminal procedures and on the list of crimes covered. The current list of crimes in the Lisbon treaty seems pretty comprehensive: terrorism; trafficking in human beings and sexual exploitation of women and children; illegal drug trafficking; illicit arms trafficking; money laundering; corruption; counterfeiting of means of payment; computer crime; and organised crime. It is not easy to predict what we might want to add to that. However, 20 years ago we probably could not have predicted cybercrime; it would make sense for the House to have the final say if in future we wanted to add a crime to the list.

Like the other parties, the Liberal Democrats are not in favour of a European public prosecutor. However, again, having the safeguard of the House deciding whether the situation would change in future seems eminently sensible. Amendment No. 46 relates to common EU defence; it brought to mind the fact that we have not had the opportunity to debate that subject properly, which is very much to be regretted. If we were to move to QMV on that issue, it would be a sufficiently big decision to require parliamentary approval. I would certainly be minded to support any of amendments Nos. 42 to 46 if they were pressed to a Division.

I was tempted by amendment No. 49, which would require parliamentary approval for various aspects of the opt-in to justice and home affairs. My issue is about the practicalities, given the short window of six weeks that we might have for opting into some of the provisions. It might be difficult to include such approval in parliamentary timetabling, so I am less convinced by the amendment, although I welcome its spirit.

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Such issues are crucial. It seems to me that we need, if necessary, to make the parliamentary timetable fit the European one to allow for proper scrutiny. We should not just dismiss the idea of giving parliamentary approval.

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Photo of Jo Swinson Jo Swinson Liberal Democrat, East Dunbartonshire

Indeed. There may be ways of ensuring parliamentary scrutiny through the timetabling of the House and other scrutiny methods; the Chairman of the European Scrutiny Committee has made regular contributions, so it may not be beyond us to manage that.

I was slightly disappointed that Mr. Meacher was not here to move his amendment No. 283, the sentiment of which I welcome. If the Government are to argue strongly within Europe for measures to reduce carbon emissions, we should make sure that those measures are sufficiently stringent to keep, if possible, to a 2° rise in temperature and to include the impact of aviation and shipping. That seems sensible. Much as I welcome the sentiment behind the amendment, however, I am not convinced that it is the best way to address the issue. Nevertheless, I urge the right hon. Gentleman to press on his ministerial colleagues the fact that a strong Government line on this matter in Europe is incredibly desirable.

Amendments Nos. 66 and 284 have given hon. Members the opportunity to raise concerns about the free market, but I am not convinced that those concerns are best addressed through those amendments.

In conclusion, I hope that the Minister will look favourably on amendments Nos. 42 to 47; perhaps he will be able to reassure the House about them, or even—stranger things have happened—accept some of them.

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Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

The hon. Lady has proceeded pretty quickly and it has been difficult to follow her. Will she be clear? What, specifically, is she looking for, and what amendments in this group are the Liberal Democrats likely to vote for?

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Photo of Jo Swinson Jo Swinson Liberal Democrat, East Dunbartonshire

I am happy to repeat myself for the right hon. Gentleman: I feel very much minded to vote for amendments Nos. 42 to 47 inclusive. However, there was a slight caveat on amendment No. 47, on which we have not yet heard the Minister speak. I cannot conceive of any argument that he could make to suggest that the change was not purely for the sake of clarification. However, I shall reserve my judgment until I have listened to what he says; sometimes it is useful to do that in debates. I have set out clearly what I am minded to do and I look forward to the other contributions.

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Photo of Kate Hoey Kate Hoey Labour, Vauxhall

I would like to say a few words on amendments Nos. 286 and 284, with particular reference to the latter. I support a number of amendments in this group, and I hope that we will get a chance to vote on amendment No. 284.

Many of the amendments that we are debating go to the heart of the debate on Europe, because they deal with how the EU affects everyday life in the UK in relation to public services, housing, transport and postal services. The European Union has a hugely powerful influence on everything that happens to us in our daily lives, but the reality is that as a result of the way in which EU legislation operates, it is often not clear to many people, including many in this House and in the media, when a particular decision or policy has originated in the EU.

Looking through a list of things that have originated in the EU—it does not matter whether one is for or against them—I find it amazing how many things in our everyday life have come from Europe. It is a diverse range of things, which shows how many people do not understand just how much has come from Europe, such as children under 12 having to sit in car booster seats—I am not saying whether that is right or wrong—fortnightly bin collections, home information packs and the disappearance of the crown sign on pints. Everyday things have changed because of law originating in Europe. The basic premise we should consider is that if we are changing legislation in this country, Parliament has to have a say, and it should have the final say.

My hon. Friend Mr. Drew outlined eloquently the reasons why he did not agree with the liberalisation of postal services. That process has been a disaster. The wonderful Royal Mail, which for more than 150 years has provided a universal postal service that was the envy of the world, with low uniform stamp prices and six-day deliveries, gave people the ability to post a letter anywhere in the country for the same price. I am not against some liberalisation of some services in the EU, but as my hon. Friend Jon Trickett said, certain things go beyond the simple idea of liberalising. For me, the postal service is one of those things.

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Photo of Jon Trickett Jon Trickett Labour, Hemsworth

I do not know whether my hon. Friend has noticed, but the European Property Federation is in conversation with the Commission about what is described as illegal state aid given by municipalities that provide social housing. Does she agree that if council housing were to be liberalised—an idea that I would be totally opposed to—the matter should be a decision for this House and not the Commission, the Council or the European Court of Justice?

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Photo of Kate Hoey Kate Hoey Labour, Vauxhall

I agree. Those are the sorts of issues that our constituents care about. They are frustrated when they see things happen about which they feel they have had no say, and on which, when they look to this place, they feel we have not had any say either. I do not want to get into this subject now, because I hope that I will be able to speak about it tomorrow, but it is one of the crucial reasons why we need a referendum. We have abandoned any idea of doing what we said we would do, and people feel that they cannot believe us or trust us.

I am concerned about the way in which liberalisation is destroying our postal service. The wording of amendment No. 284 would not change what has already happened, but it sends a signal that we do not want the process to continue without approval being given in Parliament. I sometimes wonder how on earth my Government could have gone ahead with the process so quickly. Why did we need to forge ahead and be ahead of everybody else? I do not accept the idea that they did not realise that private firms were going to cherry-pick the most profitable routes. That is clearly what they were going to do, leaving the Royal Mail to support many of the isolated rural communities and other unfashionable areas. That has gradually led to the idea that the Royal Mail is a second-class service, rather than the world class service it was and still could be with the right support. Without the revenue from the most profitable routes, the Royal Mail would also suffer financially, which is why taking away profitable business from Royal Mail has directly led to the closure of our post offices and to rationalisation.

In London, we face a raft of closures, just as many of my colleagues throughout the country do in their areas. Three post offices are being closed in my constituency, and it is outrageous that one of them in particular should close, because it meets all the criteria: it is in an urban area, it is working its way up and all the little shops are dependent on it. People will have to travel a considerable distance to get to the next post office. I went there this morning. I did the necessary walk and stood in the post office that everyone will have to go to—

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The First Deputy Chairman:

Order. I hope that the hon. Lady is not going to stray too far. I understand her passion on the subject.

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Photo of Kate Hoey Kate Hoey Labour, Vauxhall

I will not, Mrs. Heal. I am sure that there will be another day for that. However, let us not hide the facts. It was our Government who decided to go ahead with the liberalisation, but that is the European Union agenda, and we have to fight wherever we can to ensure that it goes no further. None of my constituents has ever contacted me calling for this process of liberalisation in postal services, for the undermining of the universal service obligation or for further branch closures, but I believe that that is the agenda of the European Union, as promoted in this treaty and constitution. Giving away further powers to the EU in relation to this crucial public service is, to use a cliché, like making wolves protectors of lambs. I have not found many who want this change. Sub-postmasters and postmistresses do not want it, the Communication Workers Union does not want it, and I believe that the majority of MPs do not want it either.

The amendment would send a signal and put a brake on this process that is happening above our heads. It would establish the right of Members to have some say on the future of public services, which our constituents continue to need. I have one more thing to say about post offices and the EU; I will not go back to my walk to the post office, Mrs. Heal, in doing so. A lady said to me this morning that she would like to ask me a question, and it was a question that different people have raised in other ways. She asked why, if the Government can spend £110 billion—£3,500 for each of us—to keep a bank with 2 million customers afloat, they cannot pay £5 from each taxpayer to support a post office network with 11.4 million customers. We know that they will not do that because the European Union does not want us to do it. Other countries do it and get away with it, but we seem to sit back and allow all these things to flow over our heads. That is why it is so important that we have a long debate on the referendum tomorrow.

I hope that many of my colleagues who may not have wanted to vote for a referendum will decide that it is one way of showing that they mean to get power back and take control over what is happening to our public services.

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Photo of John Horam John Horam Conservative, Orpington

I am always delighted to follow Kate Hoey, particularly on this occasion because she mentioned post offices. As a fellow London MP, she will be aware that we have real issues, which she spelled out, with regard to the possible closure of post offices. In my constituency, three are threatened with closure, which is a real worry. That state of affairs reflects an important point about one's attitude to the European Union, which was well summed up by Douglas Hurd, who once said that one of the problems with the EU is that it too often gets into the "nooks and crannies" of British life. That is where my personal objection to European treaties of this kind always lies.

On the other hand, putting on my foreign policy hat as a member of the Foreign Affairs Committee, I welcome many aspects of the treaty. I am glad that Rob Marris is in his place because he said that power was not a zero sum game and he is right: we lose, but we also gain. In the foreign policy world, we perceive powerful nations such China emerging, a regenerated Russia, the threat from the oil-producing Muslim countries and so on. We need a strong European Union to add to what Britain can bring to the table. I regard myself as a utilitarian in that I perceive the European Union as a tool that can bring benefits that the nation state alone cannot necessarily get. In that respect, I welcome the foreign policy aspects of the treaty.

None the less, even from that favourable point of view, I am worried about parliamentary control, which amendments Nos. 47 and 48 in particular deal with. The Minister knows about the passerelle clauses and the simplified procedure, which my hon. Friend Mr. Clappison mentioned, especially in relation to foreign affairs. They mean that what is currently determined by unanimity could be decided by qualified majority voting under specific procedures, especially if the high representative goes about matters in a particular manner. There are ways in which unanimity is not required in the Council before we can be presented with a change from unanimity to QMV here. It is therefore important to have some sort of parliamentary brake on the Council's proposals.

The Foreign Affairs Committee report on the treaty concluded

"that the Government's confirmation that any movement of further Common Foreign and Security Policy decisions from unanimity to qualified majority voting under the 'passerelle' procedure would be subject to a prior vote in Parliament, even where the Lisbon Treaty itself does not provide for national Parliamentary involvement, is welcome, although we recommend elsewhere that all Treaty changes are the subject of primary legislation."

We therefore welcomed the Government's action and I pay tribute to them for it.

On the other hand, we pointed out:

"However, our concerns remain about the possible use of the provision in the Government Bill which would allow 'amended versions' of decisions moving items from unanimity to qualified majority voting to avoid a separate Parliamentary vote."

As my hon. Friends pointed out, as the Bill stands one could move from unanimity to QMV and bypass Parliament. I therefore welcome the amendments that my Front Benchers tabled and also those of my right hon. Friend Mr. Heathcoat-Amory.

The Minister may know that Lord Owen, who was, of course, a former Labour Foreign Secretary, presented evidence to the Foreign Affairs Committee on a UK parliamentary brake on the treaty as enacted in the Bill. He pointed out that the European Assembly Elections Act 1978, for which he was responsible, did something similar. He said:

"What Parliament did in 1978 was to ensure that in future no British Minister could in any European forum commit to enhancing the powers of the then Assembly, now Parliament, without prior primary legislation"—

I emphasise "primary legislation"—

"in the Westminster Parliament. That Parliamentary braking mechanism should now be systematically introduced in the Reform Treaty Bill to cover all of the most sensitive political questions that concern the British people. There are also ways to inhibit any future European Court judgments."

That was a suggestion for a fairly comprehensive UK parliamentary brake, which would prevent the incremental creep that would ensue from the treaty if it were enacted as currently proposed.

That would reassure people that we had reached a point of agreement—if it proves to be agreement—about where we are on European institutions. We can make them work properly without the constant fear, which has prevailed, that the legislation is live, and that we continually get, without the necessity of parliamentary approval, further accretions of power to Europe without our having much say on behalf of the people of the country. Lord Owen's proposal, which the Committee viewed favourably, for a parliamentary brake is interesting.

My colleagues on the Front Bench may wish to take up Lord Owen's additional suggestion. He said:

"If these changes are not made by this Government and there is no referendum, it would be legitimate for a newly elected successor government to pursue detailed delineation of these matters within the EU and include them in UK legislation within two years of taking office."

In other words, should a Conservative Government be elected after the next general election, without the amendments being accepted or a referendum being held, the sensible way of reassuring people about incremental creep would be to introduce a UK parliamentary brake, whereby all change had to be made in primary legislation before action was taken. That would reassure people that Parliament remained in control. I welcome the suggestion and believe that the Government should take it into account.

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Photo of Mark Francois Mark Francois Shadow Minister (Europe)

As my right hon. Friend Mr. Heathcoat-Amory has already introduced his amendments ably and in some detail, I will be relatively brief, not least so that we can preserve time for the main debate on the ratchet clause.

Amendment No. 48 would require a Minister to seek parliamentary approval before voting in the European Council for a proposal that would transfer further powers to the European Union. The amendment has much to recommend it, not least because it would have prevented the Government from signing the Lisbon treaty without first seeking input from Parliament.

The need to put the right of parliamentary consultation before signing important EU documents on a statutory footing is strongly borne out by the case of the Lisbon treaty. The procedure of the European Scrutiny reserve already exists. If the Prime Minister had obeyed that convention, we would have been spared the bizarre spectacle of the Prime Minister's belated signing of the treaty in Lisbon without first even consulting Parliament about his authority to sign it.

However, as is often the case, the Prime Minister did not obey the scrutiny reserve. The European Scrutiny Committee specifically said that there should be a Commons debate before the Prime Minister signed the treaty. There was no such debate. Conservative Members have already proposed putting the scrutiny reserve on a statutory footing, which would require Ministers to consult Parliament before signing important documents, while preserving their ability to negotiate more generally.

I would like to say a few words about amendment No. 47. It would prevent a Minister from voting to transfer further powers to the EU or from allowing, by abstaining, further powers to be given up on a piecemeal basis. Unfortunately, clause 6 has, like most other provisions, survived intact from the wreckage of the original constitution.

Clause 6 will, for the first time, make a European treaty self-amendable on a major scale. It flies in the face of the Prime Minister's contention that the treaty marks the end of EU institutional change.

By amending clause 6 so that a Minister cannot vote to transfer powers through the "ratchet" process, the amendment would remove one of the most worrisome aspects of the treaty without, in the process, wrecking the Bill. It will compel Ministers who wish to transfer powers to the EU to do so by the current method of a full treaty followed by an Act of Parliament. It therefore deserves our support.

Amendment No. 18 is similar in design to Amendment No. 47, so I do not need to reprise the argument but, on balance, the draftsmanship of my right hon. Friend the Member for Wells is slightly superior to ours, so I am minded to support amendment No. 47.

I should like to say a few words about amendments Nos. 42 to 46 and 49. Clause 6(1) includes a list of methods whereby the Government could vote to transfer further powers to the EU without Parliament's consent. At first glance, it looks like an exhaustive list. However, it did not escape the notice of my eagle-eyed right hon. Friend the Member for Wells that the Government have missed several important instances in which further powers can be transferred to the EU by a Minister without a vote in Parliament. Those include and would be addressed by: amendments Nos. 42 and 43 regarding aspects of criminal justice, found in articles 82(2)(d) and 83; amendment No. 44 regarding the adoption of the European public prosecutor under the process of enhanced co-operation; amendment No. 45 concerning the European public prosecutor; amendment No. 46, which concerns the establishment of a European common defence; and amendment No. 49, which includes the opt-ins for the justice and home affairs proposals in the treaty. Given the many years that the Government have had to plan the Bill, working back from the original constitution, it seems incredible that they have still omitted those important powers from clause 6, which should have been set out in the Bill and which should, in our view, be subject to Acts of Parliament. All the amendments that I have listed would therefore improve the Bill without wrecking it.

Let me briefly say a few words about the amendments that Jon Trickett has tabled. I am afraid that I cannot follow him entirely, but I can understand why he made his case and conveyed a considerable sense of frustration, which came across as genuine. The Chairman of the European Scrutiny Committee also made the point that when he met COSAC—in effect, the liaison committee of other European scrutiny committees around Europe—he discovered that a number of people in other countries had realised that their postal services were under threat, too, and that they were beginning to worry.

If those people come to the United Kingdom, they will find that members of the Cabinet have realised that their post offices are under threat, too. Now they have started to campaign against that in their constituencies, despite being members of the Government who approved the closure proposals in the first place. Our European partners might look at what is happening in the United Kingdom and feel slightly under-whelmed to see senior members of our Government who think it fine to approve a programme in principle, but who oppose it locally in their constituencies, while being happy to see post offices close elsewhere, including in a number of my right hon. and hon. Friends' constituencies.

Having got that off my chest, I shall conclude. Amendment No. 47 would seek to prevent the use of the passerelles without wrecking the Bill and would therefore remove one of its more worrisome aspects. If I understand Jo Swinson correctly, unless the Minister comes up with something incredible, she and her Liberal colleagues are likely to follow us into the Division Lobby, if we follow my right hon. Friend the Member for Wells on amendment No. 47. I therefore urge my right hon. Friend to press amendment No. 47, as we would be happy to support him, for the reasons that I have outlined to the House.

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Photo of Jim Murphy Jim Murphy Minister of State (Europe) 8:00 pm, 4th March 2008

I am delighted to have the opportunity to respond to this evening's debate. Mr. Duncan Smith is currently not in his place, but I will refer to him every evening until he returns in order to get over the humiliation that I felt yesterday. I welcome the tone of this debate, which has been very wide ranging. I am not sure that I followed every detail of the assessment that Europe is to blame for many of the social evils or challenges that we face.

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

The hon. Gentleman, who is a member of the Better Off Out group, may say that—at least he is honest. We have heard about fortnightly bin collections, straight bananas and much else.

We had the opportunity to hear again from Mr. Cash, albeit more briefly than on other evenings. On previous occasions I thought that he broke the parliamentary etiquette—in a humorous way, of course—by quoting himself as an authoritative figure, as I mentioned. However, that etiquette was tested more by my hon. Friend Michael Connarty, when he quoted Mr. Heathcoat-Amory quoting my hon. Friend the Member for Linlithgow and East Falkirk agreeing with himself—a remarkable passing of the baton of consensus.

My hon. Friend is not in his place now, but I want to put it on record that we are not attracted to the radical change in the Danish system of having pre-agreement scrutiny. That is not because, as my hon. Friend mentioned, the Danish Prime Minister often has to telephone the chair of the scrutiny committee of the Danish Parliament at 3 o'clock in the morning. However, I recall an occasion four years ago when, as my hon. Friend's Whip, I had to call him at 4 o'clock in the morning to ask where he was. I do not want to share the detail of that conversation with the House, but my hon. Friend was not in Denmark; he was in Linlithgow and East Falkirk when I, as a Whip, thought that he should have been here.

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Photo of Bill Cash Bill Cash Conservative, Stone

It is just possible that the Minister gave the Chairman of the European Scrutiny Committee the benefit of his wisdom, because the Committee quite properly condemned the treaty in most respects and described it as substantially equivalent to the original constitution. That is a matter of record—is it true or false?

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

My hon. Friend the Member for Linlithgow and East Falkirk is not here, so we may have to go through this when he arrives. As I said—and as the hon. Gentleman is aware—the incident happened four years ago. I was simply giving my hon. Friend the benefit of my judgment as a Whip on the matters in hand in Parliament the next morning.

Notwithstanding the comments that Mr. Francois made about the amendments that my hon. Friend Jon Trickett spoke in favour of, I happen to agree with the sentiment of much that my hon. Friend said, because anyone who joins the Labour party has to have at least an emotional attachment and a values-based affection for many of the things that he said. I have held the belief for some time that prosperity in Europe has never been about simply the creation of wealth for the creation of wealth's sake; rather, it has been about a fair deal for workers and consumers across the European Union. That is why, both in these debates and, more importantly, for a long time before they began, I have talked about the need for Europe to deliver for the 92 million people who are economically inactive in the Union. When one in five young people in Europe are without a job, it is perhaps hardly surprising that one in six young people in Europe leave school without any formal qualifications.

My hon. Friend asked about agency workers. I should declare an interest because, as I think my hon. Friend knows, my father is still an agency worker at the age of 60, working on building sites throughout the United Kingdom. I am therefore lobbied about the matter on a daily basis, not only by constituents, but by family.

I agree with my hon. Friend that we must continually try to find more effective ways to scrutinise European proposals and provisions, which is why the process that the Leader and deputy Leader of the House have undertaken on such matters is so important.

My hon. Friend's amendments Nos. 286 and 287 would require the Government's negotiating mandate to be laid before Parliament for approval before the Prime Minister could attend any meeting of the European Council and before any Minister could attend any meeting of the Council. As my hon. Friend Rob Marris said, in his own way, we are not attracted to the proposal at this time, but perhaps I can reassure my hon. Friend the Member for Hemsworth on some of the points that he raised, first in respect of health, which has been an EU competence since the treaty of Maastricht.

My hon. Friend has expressed his concern about the matter with respect to public health, but the Lisbon treaty strengthens national control over public health. For the first time, it explicitly classifies the protection and improvement of human health as a supporting competence. In other words, it sets a clear, legally binding limit to EU competence. The treaty specifies that a supporting competence cannot replace member states' competence. Article 2(12) states:

"in certain areas...the Union shall have competence to carry out actions to support...the Member States".

It continues:

"Legally binding acts of the Union...relating to these areas shall not entail harmonisation of Member States' laws or regulations."

On the issue of national control, the new article 168(7) on page 116 of our consolidated treaties states:

"Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and"— crucially—

"the allocation of the resources assigned to them."

Other points were raised about public education. There has never been an EU competence to decide how member states should organise their education systems or their content. The Lisbon treaty does not alter that at all. Similarly, social housing is not an EU competence, and there is no proposal for it to become one. Social services relating to social housing are outside the scope of the EU internal market as well. So there is no competence because there is no treaty power on social housing.

On the issue of the Common Commercial Policy Special Committee, it is our view that, to insist that the Government present their negotiating position prior to attending a meeting would, as my hon. Friend the Member for Wolverhampton, South-West pointed out, expose our negotiating position on important trade discussions. On the wider point about the Post Office, I must point out that, even after the closure programme that is now under way, the Government are committed to retaining a post office network that, in number of branches and chains, is greater in size than all the major high street banks combined, and three times the size of the five supermarket chains in the United Kingdom combined.

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Photo of David Drew David Drew Labour, Stroud

One way in which the Government could really show their commitment would be to ensure that all the big couriers, including the Dutch Post Office and the German Post Office, sign up to a universal service obligation. We have had an assurance that Ministers are looking into that matter. Where have the Government got to in that regard?

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

My hon. Friend has continued to argue that case strongly, today and on previous occasions. We continue to support the further liberalisation of the postal services of other member states. A suggestion was made earlier that there had been a derogation from the proposal, but that is not the case. There has been a two-year delay, particularly for some of the newer member states, to ensure that they can adapt and make progress in that regard. It is because we have taken a decision in the UK Parliament—not with unanimous agreement, of course—to liberalise our own postal network that we believe it important for the UK postal network and other carriers to be able to compete in the European market. We therefore remain committed to liberalisation across the rest of the European Union.

Many points were made about the post office network, and about individual post office closures. The fact remains, however, that the Government are committed to putting £150 million a year in subsidy into the network. That is in great contrast to the fact that the Conservatives never put in a penny piece of subsidy when they were in government. Although there is not unanimity on some of the concerns that have been raised, I hope that I have reassured my hon. Friend the Member for Hemsworth—by the tone and the content of my response to his amendments—that we take these matters very seriously indeed.

One of the assertions underpinning my hon. Friend's comments concerned the potential disconnect between European Union leaders and the citizens of the EU. The fact is that we have spent seven years debating this treaty and the old constitution while China's economy has continued to grow to remarkable levels and the challenges from Russia have started to become apparent. That is why it is important that the European Union collectively has said that the period of institutional change must come to an end, and that there will be no further treaties for the foreseeable future.

With the permission of the Committee I shall turn to the more specific amendments to clause 6. We have set out provisions on the so-called passerelles that allow member states, by unanimity, to make one-off changes to the treaty. The Government's position on amending provisions is clear. Such provisions can, and could, be beneficial to the UK if we wanted to make a change to the treaty—for example, a minor change to the EU's machinery—without a full-blown intergovernmental conference. The Government's view is that we are unlikely to want to use that option often, but amending provisions to move treaty powers to qualified majority voting have been around not since the Maastricht treaty, as was suggested earlier, but since the Single European Act. They have been used on only one occasion since then. No responsible Government would say, in the abstract, that their use could never be in the UK's interest, as amendment No. 18—tabled by Mr. Hague—suggests.

Points were raised about prior control in regard to moves to QMV or co-decision. As the Prime Minister promised on 22 October 2007, we have before us in the Bill a series of attempts to change the mechanism of parliamentary control. Amendment No. 47, tabled by the right hon. Member for Wells, seeks to change the Bill so that the Government would be compelled to "vote against", rather than not being able to vote for, any of the listed measures, if Parliament had given its approval. But that is exactly what we would be doing. Under clause 6, the Government

"may not vote in favour of or otherwise support a decision" to use any of the listed amending provisions. An abstention would not prevent a measure from being adopted. That is important in regard to the specifics in the Bill. The words

"may not vote in favour" relate to when the European Council votes on an issue, based on unanimity. The words "otherwise support" relate to when the Council seeks to come to a decision by consensus. That relates to not being able to abstain when there is an attempt to reach a decision based on consensus. If the European Council sought to come to a decision based on consensus, the provision in clause 6 would mean that we would have to vote to break that consensus by not abstaining. That is the important protection contained in clause 6(1).

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Photo of Jo Swinson Jo Swinson Liberal Democrat, East Dunbartonshire 8:15 pm, 4th March 2008

I am interested in the Minister's use of semantics. If he is saying that the present wording is effectively the same as that of amendment No. 47—because an abstention would have that effect—what is his objection to the amendment, if it is seen to be written in clearer language?

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

There is a basic principle that we should not accept redundant amendments, on the basis that they are unnecessary. It is unusual in these debates for some of the votes to be up for influence on the specifics. The hon. Lady has said that my response will influence whether she votes for or against the amendment. The proposed wording in amendment No. 47 is

"shall vote against or otherwise reject".

Our assessment is that, until such time as Parliament came to a conclusion, that would force the UK Government to force a vote and to oppose a measure unless Parliament had agreed it. So the amendment would mean that we would have to pre-empt that decision until such time as Parliament had agreed it, whereas the provision in clause 6 does not force us into that position.

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Photo of Jo Swinson Jo Swinson Liberal Democrat, East Dunbartonshire

Does the Minister not think that it would be better, in such a scenario, for the timetabling to be so organised that Parliament had an opportunity to examine the issue before it came to a vote in the Council?

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

It is just an issue about whether we wish to tie the Government to a position where, under primary legislation, they would have to force a vote and vote against something when it might be that, after Parliament had considered the matter, we would all be in favour of doing it in any case.

I will try to speak more briefly to amendments Nos. 42 to 45. Extending the powers in the treaty to establish minimum standards at EU level for criminal procedural rules is intended to define additional offences and sanctions for further areas of serious cross-border crime. Though important, it does not permit an existing policy area to move from unanimity to QMV or co-decision.

Justice and home affairs amending provisions do, of course, have to secure legally watertight safeguards in the treaty against any unwanted extension of criminal procedure or criminal offences powers. Under the treaty, we have a triple lock on any use of those amending provisions. Lock 1 is that any move to identify new aspects of criminal law will be subject to our opt-in. Lock 2 is about unanimity, so we have a veto; and lock 3 is an emergency brake, which applies to both these areas of policy.

Amendments Nos. 44 and 45 would allow member states to establish a European public prosecutor, but we have a double lock on that matter, so we see no need to establish such provisions. Lock 1 is that the UK opt-in applies, so we can choose whether to participate. We would be highly unlikely to opt into a proposal to create the European public prosecutor; and on lock 2, unanimity is retained for any decision to establish such a European public prosecutor.

Let me conclude with some wider points about the protections set out in clause 6. We went further in the Bill's provisions than any other Government anywhere in the European Union who are currently using the process of ratification. The Bill gives Parliament a power that is not given anywhere else in the treaty or for any of the passerelles: prior control over the Government's veto. The treaty does not give national Parliaments prior control of any passerelle decision and a parliamentary lock is set out in the treaty.— [Interruption.] The Bill also provides a parliamentary lock on six separate passerelles, which, under the treaty, have no parliamentary lock at all— [Interruption.]

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

Order. Conversations are breaking out in different parts of the House and I am finding it very difficult to hear the Minister's contribution to the debate.

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

Thank you, Sir Michael. I was, of course, coming to the conclusion of my comments—[Hon. Members: "Hear, hear."]—as I had sensed that hon. Members were either looking forward to moving on to the second group of amendments or other business or to going somewhere else.

Let me reassert what we have sought to do in clause 6. It is about ensuring in respect of the European Union that only the UK Government are extending the powers in the clause to guarantee Parliament's power of prior approval and the consent of Parliament to any move from unanimity to QMV. On that basis, I invite my hon. Friends to oppose the Opposition's amendments.

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

I am grateful to my hon. Friends, particularly to my hon. Friends the Members for Hertsmere (Mr. Clappison) and for Stone (Mr. Cash), for their support for my amendments. I apologise for missing the contribution of my hon. Friend Mr. Horam, whose comments I shall read tomorrow morning. I believe that there was a general feeling on both sides of the House that something has gone badly wrong with this part of the Bill.

I listened with interest to the contributions of the hon. Members for Hemsworth (Jon Trickett), for Stroud (Mr. Drew) and for Vauxhall (Kate Hoey). They are absolutely right. The intrusion of the EU into public services is a matter of great concern, and it will get worse under the treaty because of its powers to regulate services of general economic interest by qualified majority voting. They are right: people do not have confidence when such vital matters are decided not here, but in remote institutions that they do not control and do not feel part of.

I probably differ from Labour Members about the degree to which market forces should apply to matters such as the Post Office and public health, but that should be contested here in this House. That is normal. That is part of the democratic process. It is what general elections are about. People must feel that through their votes, they can affect the outcomes of these policy matters. When it is all decided in another jurisdiction in institutions that they feel they do not control, democracy dies. That is why, if Members press their amendments, they will certainly have my support. I hope that they do not accept what I thought were very unconvincing assurances from the Minister when he replied to their perfectly legitimate concerns.

On the passerelle clauses, it remains our contention—and it has certainly been strengthened in my mind during these debates—that the European Union has concluded that the traditional way of making treaty changes is too risky. The people simply say no. Democracy for the EU is too messy, too uncertain and unpredictable. That is why it will never again submit policy and treaty changes to an intergovernmental conference and use referendums. Instead, it will use these passerelle clauses to make big, fundamental and far-reaching changes to the treaty of Lisbon.

My amendments would build on the modest concession that the Government have accepted, whereby this House must agree to the passerelle changes, because all the passerelles are not included. I instance three passerelles that are not subject to the Bill; my amendments would ensure their inclusion. I also believe that a vote of this House is not adequate. Those provisions should be subject to primary legislation. In addition, my amendments include matters such as the setting up of a European public prosecutor—that should be subject to a vote in the House—and the formation of a European defence force, by which we all mean, of course, a European army.

Amendment No. 47, which the Government reject, would correct a defect in the Bill. As it stands, Ministers cannot vote in favour of or support a passerelle change without parliamentary approval, but if they abstain, the measure could go through, because abstention does not stop agreement by unanimity.

The Minister made the specious claim that abstention is somehow a form of support. When we abstain in votes here, we are taking a neutral position, neither supporting nor opposing, so his argument that this was a form of support is wrong—and I am glad to have the support of the Liberal Democrats. They said that their support was conditional on the Minister's reply. In view of his inadequate reply, I confidently expect—at least on this matter—that the Liberal Democrats will vote with us.

Finally, amendment No. 48 would set up a proper system of parliamentary control over EU decisions. It would, in all cases, require prior approval for Ministers to vote in favour of EU measures subject to unanimity—or, indeed, subject to QMV, where it had been inserted under the treaty. Without such approval, Ministers would reject it. If passed over the objections of a Minister in the Council, it would not be binding on the United Kingdom, notwithstanding the European Communities Act 1972.

I understand that the amendment is a little too strong for my Front-Bench colleagues, so I shall not press it to a Division on this occasion, but, with the leave of the Committee, I shall press amendment No. 47. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 286, in page 2, line 39, at beginning insert—

'(A1) The Prime Minister may not attend a meeting of the European Council without having laid before Parliament a statement on their negotiating mandate and receiving Parliamentary approval in accordance with this section.

(A2) A Minister of the Crown may not attend a meeting of any configuration of the Council (within the meaning of Article 9C of the Treaty on European Union) without having laid before Parliament a statement on their negotiating mandate and receiving Parliamentary approval in accordance with this section.

(A3) A Minister of the Crown may not vote in favour of or otherwise support any legislative measure under any article of the Treaty on European Union or the Treaty on the Functioning of the European Union that relates to the internal market, if it applies to, or could be applied in relation to, any of the following, unless Parliamentary approval has been given in accordance with this section:

(a) health services provided by any NHS body,

(b) the statutory system of public education,

(c) social housing,

(d) postal services,

(e) public transport.

(A4) A Minister of the Crown may not vote either in favour of or against or otherwise support or oppose any legislative measure under Article 153 of the Treaty on the Functioning of the European Union, unless Parliamentary approval has been given in accordance with this section.

(A5) A Minister of the Crown may not authorise any person to represent the United Kingdom at a meeting of the special committee to assist the Commission in negotiating agreements with international organisations or third countries established in Article 188C of the Treaty on the Functioning of the European Union without having laid before Parliament a statement on their negotiating mandate; and where any person represents the United Kingdom at such a meeting, the Secretary of State shall lay before Parliament a statement on the matters discussed at the meeting, the positions taken by all persons representing the United Kingdom and the outcomes of the meeting, within 30 days of the meeting taking place.'.— [Jon Trickett.]

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Question put, That the amendment be made:—

The Committee divided: Ayes 57, Noes 329.

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Question accordingly negatived.

Amendment proposed: No. 47, in page 2, line 39, leave out

"may not vote in favour of or otherwise support"

and insert

"shall vote against or otherwise reject".—[ Mr. Heathcoat-Amory.]

Question put, That the amendment be made:—

The Committee divided: Ayes 245, Noes 305.

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Question accordingly negatived.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

I beg to move amendment No. 19, page 3, leave out lines 21 to 35.

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The Second Deputy Chairman:

With this it will be convenient to discuss the following amendments:

No. 50, page 3, leave out lines 21 to 25 and insert—

'(2) For the purposes of this section, Parliamentary approval is given if an Act of Parliament authorises Her Majesty's Government's support for a specified proposed decision.'.

No. 20, page 3, line 21, leave out from 'given' to end of line 35 and insert 'by Act of Parliament'.

No. 60, page 3, line 25, at end insert

', by a majority of not less than two-thirds of those entitled to vote in each House'.

No. 61, page 3, line 25, at end insert—

'(2A) No motion under subsection (2)(b) or (c) shall be made unless both the scrutiny reserve resolution of the House of Commons of 17th November 1998 and the scrutiny reserve resolution of the House of Lords of 6th December 1999 have been fully complied with.'.

No. 41, page 3, leave out lines 26 to 35.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

One of the aspects of the treaty that has caused so much concern in the House and in the country is that it provides, deliberately and extensively, for its own amendment on a huge scale, without recourse to a further treaty. Once again, it is in this respect an almost exact copy of the EU constitution, with articles IV-444 and IV-445 of the old constitution becoming article 48 of the Lisbon treaty. This group of amendments is designed to provide for effective parliamentary scrutiny of any use in the future of those powers of potentially immense importance.

During these debates, it has become a regular refrain to point out that the Government are now trying to win acceptance for aspects of the treaty to which Ministers themselves were long and trenchantly opposed. The self-amending nature of the treaty is no exception to that. The 2003 Government White Paper referred to

"A proposal for a Clause which would allow the European Council to vote by Unanimity to move any Treaty Article to QMV. We oppose anything that would undermine the role of National Parliaments in Treaty change."

And they were right to do so, because previous treaties, such as the Single European Act and the Maastricht, Amsterdam and Nice treaties, have only been amendable on any major scale through the passage of a later treaty, requiring a process of negotiation, publicity, media attention, parliamentary debates of a protracted nature and, in the case of this treaty, a commitment to a referendum—albeit a commitment that the Government seek to break.

Such changes have therefore occurred only periodically. They usually come as a package to be considered in the round and are difficult to bring about, as they should be, since they can change fundamentally the governance of the nation states of the European Union. The ability to make a change as important as moving from a requirement for unanimity to qualified majority voting in any given policy area has always been opposed by the Government. The Secretary of State for Justice, when he was Foreign Secretary, talked of the prospect that

"late at night at an ordinary European Council, a decision on one other country's milk quotas is traded for a concession on moving from Unanimity to QMV...that is not acceptable."

His was not an isolated voice. Mr. MacShane, then the Minister for Europe, said:

"We think that a self-amending Constitutional Treaty does not make a lot of sense."

It will be clear to observers of our proceedings by now that this treaty is closer to being a list of things that the Government did not want than of those things that they favour, which is testimony to the abject failure of much of their negotiating effort. That could never be more clearly demonstrated than on this matter, where the self-amending provisions they agreed have ended up being agreed and spelled out in glorious detail in clause 6 of the Bill. These are the passerelle clauses—or ratchet clauses, as they might be more accurately termed—which allow the European Council in any area other than defence to move from decision making by unanimity to qualified majority voting, or from special legislative procedures to so-called ordinary legislative procedures, and all without any further treaty, let alone any consultation with the electorate.

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Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs)

We intend to support the right hon. Gentleman's amendment, because we believe that parliamentary control should be retained in those areas, but I am surprised by the way in which he is caricaturing the Government's position. As I understood it, the then Foreign Secretary told the Foreign Affairs Committee back in December 2003 that it was not necessary to have the whole panoply of an IGC to amend the treaties.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

I am grateful for the hon. Gentleman's statement that he will be with us in trying to ensure that there can be proper parliamentary scrutiny in these areas. On his point about the Government's position in December 2003, I am not sure whether their position changed between November and December 2003. The quotations to which I referred were drawn from November and October 2003. It may be that the Government changed their mind at that time. Until then, or until some time a little after that, they had always opposed the creation of a self-amending treaty.

Let me remind the Committee what the treaty means by the ordinary legislative procedure. It means not just qualified majority voting but giving the European Commission the sole right to initiate legislation and the European Parliament a role of co-decision, which will mean that it will have equal rights to national Governments to amend or block EU law. The procedure maximises the role of the EU's central institutions in making EU legislation.

The care and thoroughness with which the passerelles have been inserted into the treaty tells us a great deal about the mindset of its drafters. No clearer signal could be given that in ratifying the treaty we are being invited to join a continuing process of a further reduction in the powers of nation states, exposing the assertions of the Prime Minister that the treaty marks the end of a period of institutional change. If he genuinely means that, that assessment is almost pathetically naive.

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Photo of Bill Cash Bill Cash Conservative, Stone 9:00 pm, 4th March 2008

I very much endorse much of what my right hon. Friend has said—[Hon. Members: "All of it!"] I said what I said. It is not always a question of what is said; it is sometimes about what is left out.

With respect to parliamentary approval, there are many instances where other member states have agreed to things by qualified majority voting with which we would not have agreed and have been through procedures that amount to no more than decree. In other words, they have not scrutinised the stuff properly. Effectively, we are at the end of the line.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

I endorse the whole of what my hon. Friend just said. He must not be too hard on me for missing some things out when I am only part way through my remarks. He may be able to endorse my whole speech by the time that I come to the end.

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Photo of Brian Binley Brian Binley Conservative, Northampton South

Before my right hon. Friend continues with his speech, which is excellent as usual, does he agree that the fact that not one Government Back Bencher is present is quite shameful?

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

Yes. We have just seen a split in the Labour party's ranks during the last Division and now we see the absence of its Members. Perhaps they have gone on to carry on their argument in the tea rooms and coffee houses of the Palace. I wish that they were back here to hear about the possible implications of the treaty that the Government have signed.

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Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs)

As the right hon. Gentleman is talking about the last Division, will he say whether the Conservative party's abstention during the last vote was a principled one?

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

In the last vote, the Conservative party voted. We abstained on the previous vote, but then a commitment to vote on that subject was not part of our election manifesto. That is a point that the hon. Gentleman might wish to bear in mind when we come to the referendum debate tomorrow.

If the treaty were truly the end of a period of institutional change, as the Government have asserted and as the Minister asserted when he wound up the last debate, there would be no need to build into it the ready means to accomplish further change at any time. Although the Government have given the assurance provided for in clause 6 that the agreement of the British Government to the use of such powers will require the explicit approval of a motion in each House of Parliament, it is our contention that the seriousness and scale of what could happen if the ratchet clauses are exercised merits far more thorough parliamentary scrutiny at the time.

Let us take the briefest of looks at what might happen under those clauses. They involve, for instance, changing the general rule on the determination of the common and foreign security policy from unanimity—the Government have been at pains to stress their attachment to that procedure throughout the debates—to qualified majority voting. The implications of ever agreeing to do that would be colossal, as I think Ministers would be among the first to admit. It would mean that the independence of EU member states in foreign policy would effectively be at an end. No doubt Ministers would argue that, because of the declaration on foreign policy, our ability to conduct our own foreign policy had not been affected, but the fact that that declaration is wholly compatible with the abolition of national vetoes proves how well the European Scrutiny Committee was advised when it was told that the declaration was meaningless.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

My right hon. Friend has been a high flyer since the beginning of his parliamentary career. Some of us have slogged it out on House Committees such as the Procedure Committee. Does he accept that the Government are bypassing not only the House but all its Committees, which have a duty to ensure that the House properly scrutinises matters of concern to our country?

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

My hon. Friend has had many moments of high flight in his parliamentary career, which has been much longer than mine, and perhaps his highest flights are yet to come. He is absolutely right, because the absence of a commitment to primary legislation when an agreement is made to move from unanimity to QMV cuts out the Committees of the House. Also, only a quick vote would be required, and it is not clear what the length of the debate would be—45 minutes, one and a half hours or another length of time—in which the House would sign off on such an important change.

As parliamentarians, we cannot think that it could ever be right to pass the treaty through Parliament, with or without a referendum, on the basis of explicit assurances from the Government about the general preservation of unanimity in foreign policy, and then for this or any future Government to seek agreement to surrender that crucial unanimity on the basis of a short debate on a single motion, without any substantial legislative process.

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Photo of Bill Cash Bill Cash Conservative, Stone

I was glad to hear my right hon. Friend agree with my hon. Friend Sir Nicholas Winterton on the scrutiny process. As he might have noticed, my amendment No. 61 would require any such motion to be operative only in the event that the scrutiny reserve resolution of both Houses had been complied with fully. Unfortunately, the Government frequently do not comply with that resolution fully, so a motion could be passed irrespective of the fact that the ESC's role under the Standing Orders and resolutions of the House had effectively been bypassed.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

Again, my hon. Friend makes a powerful point, and I have much sympathy with his amendment, on which he might wish to catch your eye later, Sir Michael.

The evidence adds up that Parliament should be given a far greater say than the Government currently plan to give it. The Select Committee on Foreign Affairs made a recommendation on that point in paragraph 112 of its report, stating:

"We conclude that the Government's confirmation that any movement of further Common Foreign and Security Policy decisions from unanimity to qualified majority voting under the 'passerelle' procedure would be subject to a prior vote in Parliament...is welcome, although we recommend...that all Treaty changes are the subject of primary legislation."

That is why I shall wish to press amendment No. 20 to a Division, unless the Government accept it. It makes it clear that primary legislation should be required.

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Photo of Stewart Hosie Stewart Hosie Shadow Chief Whip (Commons), Shadow Spokesperson (Treasury)

Is there not another reason to support that amendment? If an Act of Parliament was required and had an implication for one of the devolved Administrations, a consent to legislate motion would be required in the Scottish Parliament, for example. Without primary legislation, European law that had a direct impact on Scotland, Wales or Northern Ireland would be given no consideration.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

I had not considered that point, which the hon. Gentleman makes powerfully. One need consider such matters for only 10 or 15 minutes to see how strong the case is and how innumerable are the points that can be made to show why we need primary legislation in this event.

I have given an example of what could happen in the area of foreign policy, but that is not the only provision for far-reaching change built into the treaty and explicitly provided for in the Bill. Talk of moving from a special legislative procedure to an ordinary legislative procedure may sound dry and technical, but that jargon disguises—deliberately, one suspects—provisions that would have profound effects on the way in which this country is governed and policed. The ratchet clause would allow the Government to agree on a mere motion of the House and a mere motion of the other place an end to national vetoes, with the sole right to proposed legislation belonging to the Commission, on various measures ranging from visas to passports, residence permits, family law, co-operation between police, customs and every other law enforcement agency and even, in article 89 on the treaty on the functioning of the EU, what rights police forces have to operate in other countries.

The notion that a quick debate and a snap vote at a time of the Government's choosing should suffice for scrutiny or comprise adequate debate on such matters is risible. There can be no grounds to trust Government's word that they would never sign up to any of those things. Time and again they have made promises that they would not hand over powers to Europe, particularly on justice and home affairs, and time and again they have done exactly that, not least through the treaty. They said that

"we restate our agreement to justice and home affairs remaining outside Community competence"—[ Hansard, 16 December 1996; Vol. 287, c. 617.]

They said that just before they agreed that those powers should be within Community competence.

The Government agreed to put asylum and immigration under Community competence within months of coming to office at the Amsterdam negotiations, and the rest of it comes under Community competence in the treaty. They said:

"We will insist that unanimity remain for...key areas of criminal procedural law". in their White Paper on the constitution, shortly before they gave up our vetoes on criminal procedure in the constitution—provisions that are reproduced word for word in article 82 of the treaty.

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Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

I should have read the amendments more carefully, but I have not quite worked out whether they would cover approval by the House of primary legislation if we agreed to the office of European public prosecutor, which requires unanimity. I do not see in any of the amendments a requirement for such approval.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

I believe that that issue was covered in the debate on the previous group of amendments. This group of amendments does not directly relate to that, but it covers the general principle of primary legislation being required if the passerelles are employed—something on which the hon. Lady has spoken in the House and, indeed, on which she has asked me to agree. I have responded to her request by moving the amendment.

We all know in the House that statements of policy can change. I remind the House of what the former Home Secretary, John Reid, said when it was proposed just two years ago that the intergovernmental method on criminal justice and policing should be abolished after the constitution was rejected:

"The constitutional treaty is no more—it is a diseased dead parrot."

He said there would be no attempt to revisit the issue, yet that exact proposal is part of the criminal justice and policing provisions of the treaty, which the Government now say they are fully behind. On the Government's record alone, it would be sheer folly for the House to give not just them but any future Government sweeping powers without the basic safeguard of requiring the proper rigour of primary legislation. Anything less would be a dereliction of the House's duty to hold the Government to account.

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Photo of Bill Cash Bill Cash Conservative, Stone

Implicit in clause 6 is a provision whereby QMV could follow parliamentary approval. In those circumstances, it would be a matter of European law enforceable under the European Communities Act 1972. Does my right hon. Friend accept that the Act of Parliament that he proposes must of necessity override the 1972 Act; otherwise we would effectively be bound by the provisions of that Act unless they were reversed?

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

My hon. Friend is pursuing a familiar argument, which was advanced during the consideration of a previous group of amendments. We all understand and respect that argument, but I hope that he will permit me to make the particular case about the need for primary legislation.

In order to show the Committee the importance of the issue, I want to provide one more instance in which those powers could be used. Article 312 of the consolidated treaty, which concerns the need for unanimity in adopting the multi-annual financial framework of the Union, is another instance in which the passerelle could be employed by providing for that unanimity to be replaced by qualified majority voting. The adoption of the financial framework of the European Union goes to the heart of its priorities and budgets, and the unanimity rule in negotiating the financial framework is one of the last remaining negotiating levers of substantial power in the hands of nation states. Are the Government serious that such a power, which potentially affects the deployment of billions of pounds of British taxpayers' money, let alone our ability to get our way in European affairs across the board, can be done away with by a Minister getting up in this House on a Thursday afternoon to propose that it be done away with and securing a single affirmative vote? The procedure proposed by the Government is not remotely proportionate to the potential importance of the decisions.

The Government may say that they cannot imagine proposing the changes that I have described, so we need not worry our little heads about them. There are several answers to that. First, if the Government have no intention of proposing such changes, they have nothing to fear from the most extensive possible parliamentary scrutiny or control and the requirement to pass an Act of Parliament. Secondly, the current Ministers will not be Ministers for ever, and if they are to be believed, the treaty is meant to last for a long time. Thirdly, whatever assurances Ministers give, they represent the Government who assured us that there would be a referendum and that there would be line-by-line scrutiny of the entire treaty. It is clear that such assurances cannot be relied on. Fourthly, if the Government have no intention of exercising the powers that I have described, why on earth did they agree to include them in the treaty in the first place?

I put it to hon. Members from all parties, although there are more Opposition Members than Government Members in Committee, that irrespective of our views about the merits of the treaty as a whole—I am pleased that there is common ground with the Liberal Democrats on this—amendment of the Bill is possible in this area without wrecking the treaty. It is possible to provide for proper parliamentary debate and supervision of the exercise of powers by providing that passerelles or ratchet clauses will be subject to primary legislation in the British Parliament.

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Photo of Patrick Cormack Patrick Cormack Chair, Northern Ireland Affairs Committee 9:15 pm, 4th March 2008

Will my right hon. Friend remind himself and the Committee that this Government introduced deferred voting, which involves filling in little forms? The next step will be deciding matters of enormous importance on a Wednesday afternoon by filling in bits of paper.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

My hon. Friend has made a good point. Under the terms of the Bill as drafted, there might be a short debate late on a Tuesday night or Thursday afternoon. In that case, the rules of the House provide that the motion should be decided by a deferred Division, in which case the House of Commons, as a body, would not even be sitting here attentive to the debate when such matters went through. Once again, the case for primary legislation involving a series of debates and votes in this House and in Committee is clear.

The changes that could conceivably be brought about under those passerelle rules are potentially as important as the changes currently contained in the treaty. If they were exercised, it would breach the assurances given by Ministers during the passage of the Bill. If they or their successors abandon those assurances, they should at least have to pass another Bill to the satisfaction of both Houses of Parliament. I put it to the Committee that for decades the amendment of European treaties, whether provided for in the Single European Act, the Maastricht treaty, the Amsterdam treaty, the Nice treaty or this treaty has been a matter for primary legislation. To allow the amendment of such treaties, possibly on a considerable scale, without recourse to primary legislation is a further diminution in the role of Parliament and its power to control the Executive of the day.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I shall be delighted to continue to listen to my right hon. Friend because he is making a lot of sense. Is not the situation made worse by the fact that how the European Community spends its money has never been fully accepted, passed and audited by those who undertake that important responsibility? How can we trust the European Union and the Government who now want to take more power and responsibility away from this place and give it to an irresponsible, profligate organisation?

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

With his customary passion, my hon. Friend makes a point relevant to the multi-annual financial framework, to which I referred a few moments ago. If we are ever to satisfy ourselves that the money spent by the European Union is properly audited and accounted for in future—and my hon. Friend will know that the Commission's accounts have not been signed off by the auditors for many, many years—

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

Thank you. If we are ever to sort that out, the British Government will be required to use their negotiating power—and negotiating power in the financial affairs of the European Union stems from the unanimity rule in agreeing the multi-annual financial framework. Yet now it turns out that that rule could be done away with for ever and a day by the Government coming to the House, holding one of those short debates late on a Tuesday and having a deferred Division on a Wednesday. That would be the only scrutiny of the decision that the House would ever have.

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Photo of Bob Spink Bob Spink Conservative, Castle Point

Will my right hon. Friend confirm that the auditors have failed to sign off the accounts for 13 consecutive years not because of some minor issues but, as they themselves said, because of major problems in all the key spending areas?

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

I do not want to stray too far from the amendments, Sir Michael, but my hon. Friend is absolutely correct.

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Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Secretary of State for International Development

My right hon. Friend has made a cogent case. These are indeed very serious clauses. Can he envisage a situation in which all the Government had to do was pass a one-clause treaty of Lisbon (miscellaneous provisions) Bill, all of whose provisions were dealt with by secondary legislation upstairs for an hour and a half? Given their majority, the Government would always get their way. Would that not be an even worse scenario?

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

It is possible for the scenario to become even worse, although my hon. Friend Sir Nicholas Winterton says that it could not. One can imagine the further delegation of the powers, to make matters worse still. Again, the requirement for a Bill to be presented to the House and have its Second Reading on the Floor of the House, whatever happens to it afterwards—whether it goes to a Committee of the whole House or elsewhere—is a strong one that parliamentarians across the House would like to see.

The Prime Minister has assured the nation that the treaty of Lisbon means an end to institutional change in the European Union. If it turns out that it does not mean that, surely the abandonment of such an assurance should be subject to the maximum parliamentary scrutiny. In effect, the Government are asking us to trust them that the use of the passerelles will be limited and that they will provide for adequate parliamentary debate on the basis merely of a motion. Yet after all the broken promises that have characterised the very process in which we are now engaged, they must understand that trust is in very short supply.

Parliament should ensure that its right to decide on the amendment of treaties is preserved in full; it should insist that changes comparable to those that have always required primary legislation should continue to require primary legislation. It would cost the Government nothing to accept these amendments this evening; if they refuse to do so, it would cost the House nothing—whether we are for or against the treaty—to insist on passing them.

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Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs)

It is a pleasure, for once during our proceedings, to agree almost entirely with what Mr. Hague said. Like Mr. Cash, I agreed with much of what the right hon. Gentleman said.

The amendments are incredibly important, because they go to the heart of the democratic accountability of decision making. Unlike the right hon. Member for Richmond, Yorks and many of his hon. Friends, I believe that the European Union allows for a lot of accountability through the European Parliament and the scrutiny of the Council of Ministers—once this House has taken decisions in the proper way through a proper primary legislative process. That is fundamental, and if anything, the right hon. Gentleman underplayed his points.

Many of the policy areas contained in the passerelles referred to in clause 6 go way beyond the treaties of Lisbon, Nice or Amsterdam. They are exceedingly significant. The idea that we might have qualified majority voting on common and foreign security policy is exceedingly serious. The idea that such a change could happen through a mere motion in the House is extraordinary. Moreover, the idea that the control of budgets through the multi-annual financial framework, which the right hon. Gentleman described in some detail, could move from unanimity to qualified majority voting through a mere motion of both Houses is absurd.

The House does an appalling job on finances already. When I was a member of my party's shadow Treasury team, I often used to say that I would love it if we had parliamentary sovereignty over the way in which the Executive spend money. Indeed, I wrote a pamphlet in 2000 entitled, "Making MPs Work for Our Money". In that pamphlet—it is a cure for insomnia, I readily accept—I point out that the last time the House voted against an expenditure request from the Executive of the day was in 1919. Since 1919, every expenditure request from the British Executive, whatever party has been in control, has been nodded through. This Parliament, this House of Commons, has given up control of expenditure by the Executive of the day, and we should reform that process. I was delighted to sit on the Procedure Committee, which was excellently chaired by Sir Nicholas Winterton, when we made those points about financial scrutiny.

If the House is already so poor on this matter, we should not allow the small, remaining powers that we have, which are more related to the European Union's budget than that of the UK Government—that is how ridiculous this situation has got—to move to qualified majority voting at the European level without an Act of Parliament. Given that Parliament is so weak on such financial affairs already, it would be a mistake to give up those powers without the controls proposed, particularly in amendment No. 20. I am glad to hear that the right hon. Gentleman wants that to be the amendment that we divide on.

I often have to read the right hon. Gentleman's speeches; I am sure that I have read more of his speeches than he has of mine because he has a rather illustrious— [ Interruption. ] I am sure that they have more jokes. I read a speech that he made at the last Conservative party conference in which he said clearly that there should not be any further European treaties without a referendum being held first. If I am misquoting or in any way misrepresenting him, I hope that he will intervene. As I understand it, his position is that there should be a referendum on any European treaty in the future.

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Photo of William Hague William Hague Shadow Secretary of State (Foreign Affairs)

The position of the Conservative party that I explained at the party conference was that there should be no further treaties that transfer new competences to the European Union without a national referendum.

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Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs)

I am grateful for that clarification, which describes a significant difference. Moving from unanimity to qualified majority voting is not a transfer of competence, so the point that I was about to make is not quite valid. I had been wondering whether the right hon. Gentleman should call not for Acts of Parliament but for referendums on such issues, but I shall withdraw the point.

Amendments Nos. 50 and 41, which Mr. Heathcoat-Amory tabled, are similar to amendments Nos. 19 and 20. Of the four, amendment No. 20 is by far the clearest and goes to the heart of the matter. The hon. Member for Stone tabled amendments Nos. 60 and 61; he will doubtless speak about them, and perhaps I will intervene on him. It is slightly ironic that he wishes the House to move to qualified majority voting, given his stance on QMV at European Union level. I will not say much about his amendments because I want to hear his arguments. However, Parliaments in the EU countries that currently use QMV for constitutional changes or changes in their relationship with the EU are elected by proportional representation. Clearly, that creates a different dynamic in their legislatures.

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Photo of Bill Cash Bill Cash Conservative, Stone 9:30 pm, 4th March 2008

The hon. Gentleman is in danger of confusing himself. Amendment No. 60 does not propose qualified majority voting in the sense that it is used in the treaty. He can describe my two-thirds proposal as QMV, but it is not that in the United States Senate and Congress. The two-thirds provision derives from the United States and it is simply a gesture of despair, given that the motion would otherwise be whipped through under the normal arrangements. However, I shall explain that when I make my speech.

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Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs)

We could hold a long debate about different names—super majorities, qualified majority voting and so on—but the point has been made. It is interesting that the hon. Gentleman takes the proposal from America, where the system of government is different, with the separation of powers. However, I am not attracted to his amendments. I will listen to his speech, but on the face of it, I am not attracted to them.

Amendment No. 20 is the right way forward. I hope that the Government are listening to the debate and that there will be some contributions from the Labour Benches. Ms Stuart and I have already clashed during our proceedings, but I believe that we are as one on the subject that we are considering because it is extraordinary that we could amend treaties without a proper primary legislative process.

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Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

I am beginning to wonder whether I am right as I agree with Mr. Davey, which almost causes me to reconsider.

I want to make a couple of brief points about the importance of amendment No. 20. Passerelle clauses and ratcheting are the essence of what many people in European politics think of as organic law. Through such provisions, one reaches the position whereby the European Union can create its own competences. Most countries with written constitutions have protection from their constitutional courts; certain things cannot be done because their written constitutions do not allow it. We do not have such protection and that is why we need additional safeguards. Using primary legislation for any further extension of qualified majority voting would be one such protection.

I am interested to learn whether anybody knows whether votes in Special Standing Committees on European Affairs have ever changed a Government proposal.

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Photo of Bill Cash Bill Cash Conservative, Stone

The short answer is that, on one or two occasions, after recommendations from the European Scrutiny Committee, a matter has gone to a European Standing Committee, which has reversed a decision. I have been there—egging the members on, as hon. Members can imagine. However, under sections 2 and 3 of the European Communities Act 1972, the Committee's decision is automatically, without further ado, reversed on the Floor of the House. The House appears to be supine on overriding the 1972 Act.

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Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

I am grateful for that, but I think that we all agree that the House is not very effective in holding the Executive to account in respect of actions in the Union, and that is the case even on policy. When it comes to institutional changes, the issue is even more important.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Does the hon. Lady not accept that the answer that my hon. Friend Mr. Cash gave to her question is no? No Special Standing Committee has ever changed the legislation that it has considered, because the Government hold a majority on the Floor of the House.

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Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

That is very much my take. Most Governments can get their way and will even whip primary legislation through—that is the essence of how this place works. However, both Chambers will be required to consider any proposals properly, so primary legislation must be the way forward, as the Foreign Affairs Committee recommended.

The other point, which may seem slightly bizarre, is that many people see the continuous move towards qualified majority voting as progress. However, unless we retain unanimity in certain areas, we will become part of what I would regard as a federal state. If anyone asked me how I would define federalism, I would say that it means that on all occasions the majority can overrule the minority. We still have a few key areas, such as finance and defence, but with devolution in Wales, Scotland, Northern Ireland and even London, as well as what is going to Brussels, this place may ultimately end up doing nothing other than raise taxes and authorise war. Those are two significant areas, but if there was any further erosion, there would have to be primary legislation at a minimum. Therefore, although I will probably again be a member of an eccentric minority on the Labour Benches, I will certainly support amendment No. 20.

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Photo of Bill Cash Bill Cash Conservative, Stone

My right hon. Friend Mr. Hague has made some extremely important points and I am glad to be able to give somewhat qualified support for the proposal in amendment No. 20.

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Photo of Bill Cash Bill Cash Conservative, Stone

My hon. Friend, the Whip on duty, may say that, but it is extremely difficult to be generous with the rights of our constituents and the voters of this country. In essence, that is one of my concerns.

With respect to subsection (2), which is what we are talking about, I would like to add a number of things to what my right hon. Friend said. Where a Minister of the Crown moves a motion under the arrangements proposed, there is a difficulty—I speak as a member of the European Scrutiny Committee, on which you served with me for 14 years, Sir Alan, so you understand this very well—in that where a scrutiny reserve has not been complied with, it is perfectly possible that the cart and the horse are not in the order which one would expect.

The net result is that it is possible that parliamentary approval could be followed by a decision, particularly in the context of qualified majority voting in the Council of Ministers. Where that happens, such a decision automatically becomes binding on the House, without further implementation in the House, under sections 2 and 3 of the European Communities Act 1972. In no way do I apologise for, or resile from, my insistence upon the necessity of saving our House, this country and Acts of Parliament by the insertion of the words "notwithstanding the European Communities Act 1972", in order, apart from anything else, to make sense of the amendment that my right hon. Friend has moved.

I will explain. To take my right hon. Friend's amendment No. 20, for example, if we were to insert the words "by Act of Parliament" but not include "notwithstanding the European Communities Act 1972", the following would happen—I do not say that it could happen, but that it would happen. In the case of the Merchant Shipping Act 1988—I hope that my right hon. Friend will listen carefully to this—an Act of Parliament was passed that the European Court regarded as inconsistent with the 1972 Act. A case called the Factortame case went to the House of Lords and was heard by Lord Bridge and others. As a result of the lack of the words "notwithstanding the European Communities Act 1972" in the Merchant Shipping Act, our own House of Lords, effectively on instruction from the European Court of Justice, struck down our Act of Parliament. The House might find that incredible because, after all, that Act of Parliament had been passed in pursuance of Government policy, and in pursuance of the interests of British fishermen and, therefore, the interests of the people of this country.

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Photo of Bill Cash Bill Cash Conservative, Stone

I shall give way in a moment.

The reality is that that case demonstrated the assertion of primacy by the European Court of Justice, which is contained in declaration 17 of this treaty, by the way. That is a restatement of the case law, which has much more significance as a result of the restatement than hon. Members might think. Incorporating the reassertion of the primacy of European Union law by the European Court of Justice, not only in respect of individual pieces of legislation but of our entire constitutional arrangements, including everything that we do in this House on behalf of the people who vote us in here, will result in all those things being overridden by the arrangements that are specifically stated by the European Court of Justice in its assertions as against this House. I do not want to minimise the importance of that. For that reason, I have put the words

"notwithstanding the European Communities Act 1972" into another amendment, which we might have an opportunity to deal with tomorrow.

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Photo of Bill Cash Bill Cash Conservative, Stone

I will certainly give way to my right hon. Friend in a moment. I just want to get this on the record.

It is absolutely essential to protect the provision that my right hon. Friend the Member for Richmond, Yorks explained so well just now from being overridden by the European Court. I know that my right hon. Friend does not want that to happen. I have pleaded with him on a number of occasions to listen carefully to what I am saying on this subject. He is right: these changes should be brought about through primary legislation. He is also right that the provisions would ride roughshod over our parliamentary procedures here, and that the proposed motion would get nowhere. Ms Stuart is also right to say that this measure will be driven through by the Whips, and that that is a reason why an Act of Parliament should be used.

However, it is also necessary to protect such an Act of Parliament from the predations and assertions of the European Court of Justice in circumstances in which we, as a nation—and we, as a Parliament, on behalf of our own citizens and voters—have decided that we want to take a position that differs from what is being prescribed, sometimes in defiance of the wishes of our own Government. We already know, from contributions from the Minister for Europe and others, that the Convention overrode a lot of the decisions that the Government wanted to make. We are therefore already implementing in the Bill things that we know the Government did not want. That is because they were weak-kneed and they buckled. In the circumstances that I am describing, we would be overridden and kicked into touch.

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Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

My hon. Friend has moved on slightly from the point on which I wanted to intervene on him. I just wanted to make the point that the Factortame case was a critical moment for us. I also wanted to re-explain to the Committee—particularly some Labour Members, although not Ms Stuart, who understands these things—the reason why the position of European law and the European Court is much more damaging to us than to almost any other country. That is because we have no checks or balances to stop the direct judicial activism that has flowed here directly as a result of European law. The Conseil d'Etat and other constitutional courts make their Parliaments revisit this matter and study it, but we do not. That is why so much has flooded through this place. Now those countries anticipate that and act accordingly, so they do not get struck down in the courts. That is the big problem that we face with the clause.

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Photo of Bill Cash Bill Cash Conservative, Stone 9:45 pm, 4th March 2008

My right hon. Friend is right in his general principle, but let me add one or two points to what he said. First, there are already cases in the German and Italian courts—and perhaps the courts of one other country, too—that until recently and in some instances still remain in defiance of arrangements made by the European Court of Justice. That is because there is a conflict between what those courts want, what the European Court wants and the individual national constitutions. I am afraid to say that the tendency has been—it is part of the process of negotiations over the treaty of Lisbon—effectively to move past that as if it were not like an ectoplasm and as if it really did not matter very much. Actually, each of the countries concerned has displayed a tendency to roll over, even where there is a written constitution, as in Germany, as I explained earlier.

I have been working over a number of months with German jurists of great eminence who oppose this treaty precisely because they fear it will have the effect of overriding the German constitution. About 10 years ago, there was the Brunner case, which dealt with similar questions. There are serious problems, as constitutions are being overridden by the ideology of the European Union. It is rather like the divine right of Kings, which overrode Parliament, leading to a pretty catastrophic result in 1649. I want hon. Members to take this very seriously, as this is not just a historical lecture, but what actually happened. I started my speech on the issue of the supremacy of Parliament and referred to the Putney debates for this reason— [Interruption.] The hon. Member for Birmingham, Edgbaston may laugh, but I am not absolutely—

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Photo of Bill Cash Bill Cash Conservative, Stone

I am very glad to hear that, because these are matters of English historical significance. I simply make that point, because it is important for us to remember that Governments—whether it be the Stuarts, or, more recently, in the mid-20th century, with Government nationalisation programmes—have periodically in our history attempted to drive through legislation with the effect of imposing an authority that did not have parliamentary approval of the kind that we are searching for in these amendments.

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Photo of Bill Cash Bill Cash Conservative, Stone

I shall give way to the hon. Lady first, and then to my hon. Friend.

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Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

As an aside, I recommend to every Member a recent book on the Putney debates, written by a member of staff who works for an MP. Does the hon. Gentleman accept that whenever the European Court of Justice has confronted a constitutional court head-on, so far it has always backed off? The real problem is that we do not have a similar buffer line to say that a decision goes against our constitutional structure, and I am not entirely sure that the hon. Gentleman's amendment would achieve that either.

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Photo of Bill Cash Bill Cash Conservative, Stone

I do not want to go into the specific details of the "notwithstanding" formula now, except to say that it would have that effect, because if we were to legislate in a manner specifically, expressly and positively inconsistent with European legislation and we were to say so, our courts would be obliged under the rulings of Lord Denning, Lord Diplock, Lord Justice Laws and others in a well established line of cases to give effect to that latest express inconsistent law—irrespective of the European Communities Act 1972. That was said clearly by Lord Denning.

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Photo of Peter Bone Peter Bone Conservative, Wellingborough

Although I agree with the thrust of my hon. Friend's argument, would it not be better to accept the amendment that specifies the need for an Act of Parliament rather than accept the Government's position, under which they will not have an Act of Parliament or primary legislation? If that entailed a huge row between us and the EU over sovereignty, would it be a bad thing?

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Photo of Bill Cash Bill Cash Conservative, Stone

The short answer is that if I were to choose between the amendments, I would most emphatically choose that tabled by my right hon. Friend the Member for Richmond, Yorks, because it would go a long way towards what I would like.

The problem is that that amendment would be ineffective in law, along the same lines as the Merchant Shipping Act 1988 in the circumstances that I have described. If there were conflict between the proposed Act of Parliament and the European Community decision or regulation made by the European Commission or a decision made by the EU—the treaty contains many embellishments and enlargements of the powers to make those various provisions effective in European law—we would immediately come up against that problem.

I say this in all seriousness and, I hope my right hon. Friend understands, a spirit of friendship, but also of some guidance, perhaps. He might carefully listen to what I am saying and take account of it. This is a matter not just of theology, but of whether his amendment would be effective.

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Photo of Patrick Cormack Patrick Cormack Chair, Northern Ireland Affairs Committee

My hon. Friend and neighbour has taken us a little beyond the point at which I wanted to intervene, but I would like to say that nobody was quite as rough with Parliament as Cromwell was. My hon. Friend ought to remember that.

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Photo of Bill Cash Bill Cash Conservative, Stone

Yes, indeed. The hon. Member for Birmingham, Edgbaston has been reading about the Putney debates. An extremely good book by Mr. Yerbey describes in great detail everything that took place between 1640 and 1649, and demonstrates that the principle of common consent included trying to save the King but unfortunately, the Government and, I have to say, my right hon. Friends, rather like the EU, sometimes get into a position that is indefensible. In those circumstances, it is necessary for some people to get up and say, "So far and no further." We have to protect the House and our voters by using the formula I have described.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I respect my hon. Friend's knowledge of the history of this country and the development of laws over the centuries, but I want to come right up to date. From my position, it is increasingly apparent that the courts in this country believe that our laws are subordinate to those that come from the EU. Is that not a correct understanding of the situation? Where does it place the primacy of the House of Commons and the United Kingdom Parliament?

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Photo of Bill Cash Bill Cash Conservative, Stone

My hon. Friend makes an important point, and basically he is right. There is an increasing tendency in that direction, and it exists in a number of academic circles as well.

To those who take an interest in these things—I hope Members do, because these issues will affect their constituents, which is my main concern in raising these points—I recommend their reading the section in the 14th edition of Bradley and Ewing that sets out in a crystal clear fashion the question of parliamentary supremacy and how it operates in relation to the EU, and effectively recommends that the formula I am adopting is the only way to achieve the objectives in relation to clause 6 or, indeed, the Bill as a whole. That is the subject of tomorrow's debate on new clause 9.

There was a time when Professor Wade, who was one of the great authorities, purported to suggest that there had been a revolution in 1972, and therefore that the idea of European legislation was utterly entrenched. However, by the end of his distinguished career, he had already had it demonstrated to him that that was not the case.

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

May I take my hon. Friend back to 1649, and its direct relevance to the amendments? Given the lack of any evidence that power has been returned to the House in the past. when it has been ceded under earlier constitutional treaties dealing with matters that will now be dealt with through qualified majority voting or the simplified revision procedure, does he agree that there is less chance of its doing so in future than there was of the restoration of the King in 1660?

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Photo of Bill Cash Bill Cash Conservative, Stone

On 3 May 1660, if we want to be absolutely precise.

My hon. Friend is right. That is why the kind of change that took place then, and subsequently in 1688—I have tabled an amendment relating to the Bill of Rights, which must also be considered for voting purposes—is so important. Although we talk as if we were completely up to date, the principles on which we are operating represent the gradual dynamic and evolution of our constitution. I am glad that it is as it is, and I want to keep it that way. We can adjust to changing circumstances, as was agreed by Edmund Burke and others who founded the Conservative party.

Let me return to the intervention by my right hon. Friend Mr. Duncan Smith. The acquis communautaire, which clause 6 would enshrine in these provisions, is effectively unalterable within the legal parameters of the European Union and its legal framework. We may be locked into decisions that cannot be changed, notwithstanding practical circumstances such as the economy, globalisation, overregulation and all the other factors that create the system by which we are governed. If we want to make changes, we will have to be able to unlock that arrangement.

Written into the European Union is an internal implosion mechanism. When things go wrong—when the unemployment level reaches a certain point, or globalisation and competition with China have an effect—it can apply in the context of several of the provisions in clause 6: provisions relating to social policy, the environment, European finance, enhanced co-operation, common foreign and security policy, and issues on which the adoption of qualified majority voting arises. In any of those contexts, the problem will be that Europe will need to get rid of the overregulation, and we in this country will need to make changes to bring us up to date.

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Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Secretary of State for International Development

The Merchant Shipping Act 1988 relates to circumstances that were not specifically foreseen. My hon. Friend has always maintained in private that if the House legislates for specific circumstances, for example in the European Human Rights Act, it is very difficult for the European Court to overturn that specific legislation. Where on the scale does he put this amendment? Would the European Court be able to strike down specific primary legislation from the House?

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Photo of Bill Cash Bill Cash Conservative, Stone

I will not become involved in discussing the Human Rights Act because it is not the subject of this debate, but in response to the general question I will say that because of the root of the problem—namely, sections 2 and 3 of the European Communities Act—it is open to our courts to invoke that Act, as Lord Bridge did in the Factortame case. In 1972 the House entered into a voluntary arrangement, and for as long as it remains a voluntary arrangement the courts are quite properly entitled to say that we are in breach of our own Act of Parliament. We have to unravel that to be able to ensure that we can meet the changing circumstances that will enable us to make sense of legislation that would otherwise inhibit the proper conduct of our affairs. The European Union can come along and impose that on us, and we will have no recourse unless we use the formula that enables our courts to extricate us.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

My hon. Friend is making a most encouraging case. He has given an example in which the courts have used our legislation to stand up for British interests. Why do the courts of this land not take such action more often to support the interests of the United Kingdom and its people?

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Photo of Bill Cash Bill Cash Conservative, Stone 10:00 pm, 4th March 2008

The short answer is that it is precisely because of the judicial activism that we discussed earlier and the fact that there is a growing tendency for the European legal authorities, in concert and discussion with our judicial authorities, to arrive at decisions to amplify the application of European integration, whereas we on this side of the House want to diminish it, which is why we voted against the Second Reading of the Bill in principle. We are now engaged in a process. The Minister for Europe said that my party is tending to move in the direction of some of the arguments that I have made over a number of years, not because of anything specifically wonderful that I may have said—

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Photo of Bill Cash Bill Cash Conservative, Stone

I am absolutely determined not to go there under any circumstances. I am saying that the most important thing is the recognition of the fact that this House matters to the people of this country. It has nothing to do with any individual's contributions. It has to do with the fact that we are talking about fundamental principles of democracy. That is why it worries me so much when I hear the Liberal Democrat spokesman saying that the reason his party is adopting a certain position is because of its idea of democracy. I say to the Government that it is not possible to advance the argument that they are being democratic in putting this through when they have broken their promises and following all the utterly disgraceful reasons that they have given.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

My hon. Friend may take a long time to say what he has to say, but he knows more about European treaties than any other single member of this House and bravo to him.

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Photo of Bill Cash Bill Cash Conservative, Stone

I apologise for having at times to explain things at greater length than even I would like. [ Laughter . ] That is a remarkable admission from any Member of this House, although Gladstone once spoke for six and half hours. I have no intention of doing anything like that tonight, I can assure you, Sir Alan. I would not be allowed to do so, either.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. The hon. Gentleman almost anticipates me. I was about to say that he would perhaps face a sterner test with me on that particular point.

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Photo of Bill Cash Bill Cash Conservative, Stone

And may I say, "With some relief," Sir Alan, because I know that we are time-limited.

To summarise, I have other proposals concerning the two-thirds majority. I proposed that to demonstrate that although I thought an Act of Parliament was a good idea, subject to the arguments that I have just presented, it might run into serious difficulties. I said, almost in a gesture of despair, that to have two thirds of each House required as a matter of law to have to give effect to a proposal would be a kind of block. It is intended as an indication of the fact that these arrangements under the clause should not be allowed to go through without a serious block. The two-thirds block is loosely based on the arrangements in the US, recognising that the US constitution is different from ours. However, it was an attempt to demonstrate that to push something like this though required a very stiff hurdle.

The other amendment I tabled concerned the insistence that the scrutiny reserve should be fully complied with. Again that links back to my point on the difficulty in terms of the timetable and the chronology into which we could be locked simply by saying that we want to have an Act of Parliament, as that itself might fall victim to a provision agreed by QMV or some other way through the aegis of the Council of Ministers, and therefore become binding in UK law under the European Communities Act 1972. I proposed a requirement that we would have to comply with all the scrutiny arrangements so there would be no excuse for a Government Department to override the European scrutiny arrangements. That would therefore protect any legislation that we decide we want to approve by this procedure. The procedure is faulty, and it is also fraudulent because it is not possible to disapply legislation that has been passed in pursuance of the 1972 Act. I have made my case. We must not allow the Government to get away with any more of these fraudulent activities.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I congratulate my hon. Friend Mr. Cash on the case he has presented. As someone who is totally committed to the integrity, independence and authority of the House, often against the Executive of the day and certainly against the unelected bureaucracy in Brussels, I fervently believe that this clause will be hugely damaging to the House. I follow entirely my hon. Friend's case. He has quoted with knowledge historical precedent, and I believe he is right. I only wish that more Members had been present tonight to listen to a speech that is of critical importance to the future of the authority of the House.

My main purpose, however, is to support the brave and thoughtful, but very brief, contribution of Ms Stuart. I remind Members that the hon. Lady represented the House on the constitutional Convention. She is well aware that the Lisbon treaty is in substance precisely the same as the proposed constitution that was defeated in the Netherlands and France. She has stated tonight, with conviction and knowledge, that if we move towards an increase in qualified majority voting and pass dozens of additional competences to the EU, this House will become part of a federal structure; I might be paraphrasing her exact words, but that is what she stated would be the case. To pass a huge number of competences in areas of critical importance would be extremely damaging not only to this House but, more importantly, to the people of our country, who are represented by the Members of this House. I do not believe that they consider it appropriate for the House to pass to the European Union authority over areas that are of such critical importance.

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Photo of Andrew Selous Andrew Selous Shadow Minister (Work and Pensions)

Does my hon. Friend agree that more Labour Members should be emboldened to take the principled stand of Ms Stuart? As the Prime Minister has said that he wants full parliamentary scrutiny, he should support amendment No. 20, because given that the treaty can amend itself, all the amendment does is support his wish for proper parliamentary scrutiny of the treaty.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

My hon. Friend is absolutely right. I have always considered the Prime Minister to be a man of Christian integrity. I believe that he probably meant what he said, but, unfortunately, that is not what is happening in his name.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Perhaps I am a kind man. I believe that after a good many years in this place one perhaps moderates some of one's views and considers most Members of this House with respect, regardless of the side on which they sit. I am pleased that I have many friends on both sides of the House, because that is what Parliament is all about. Unfortunately, Parliament is reaching a situation whereby people believe in and perhaps even speak in support of something but too few of them vote in the Lobby in support of their words.

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Photo of Theresa Villiers Theresa Villiers Shadow Secretary of State for Transport

The Government's main argument on the passerelle clauses, with which the amendments are concerned, seems to be that they are all very technical, and therefore not that interesting, and will not be used in any case. Is that not the classic tactic that has been used over the entire 50 years of the European project to disguise major constitutional change and prevent it from being properly scrutinised by the people whose rights are being removed by proposed changes?

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

My hon. Friend, who has a great parliamentary career in front of her and who has recently been speaking from the Front Bench with great authority, is right. I came into this House at the beginning of the passage—

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

No. I must tell the hon. Gentleman that I have