Clause 1 — Interpretation of Part 1

European Union Bill (Programme)(No. 2) – in the House of Commons at 4:12 pm on 24th January 2011.

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Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs) 4:12 pm, 24th January 2011

I beg to move amendment 85, page 2, line 6, at end add-

'(7A) References to "the Committee" are to the European Union Referendum Committee as established by section [European Union Referendum Committee] below.'.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Chairman of Ways and Means

With this it will be convenient to discuss the following:

Amendment 86, in clause 2, page 2, line 10, leave out

'a statement relating to the treaty was' and insert

'the treaty and a statement relating to it were'.

Amendment 1, page 2, line 13, leave out 'or the exemption condition'.

Amendment 92, page 2, line 16, leave out from 'until' to end of line 22 and insert

'the referendum procedure set out in subsection (2A) below has been completed.

'(2A) The referendum procedure is completed if-

(a) a decision has been taken by either or both Houses of Parliament not to hold a referendum, whether by agreeing with a recommendation from the Committee that a referendum is not required or by disagreeing to a recommendation from the Committee that a referendum is required; or

(b) a referendum has been held throughout the United Kingdom, or where the treaty affects Gibraltar, throughout the United Kingdom and Gibraltar, and a majority of those voting in the referendum are in favour of ratification of the treaty.'.

Amendment 2, page 2, line 23, leave out subsection (3).

Amendment 87, in clause 3, page 2, line 29, leave out

'a statement relating to the decision was' and insert

'the decision and a statement relating to it were'.

Amendment 67, page 2, line 32, leave out paragraph (c).

Amendment 3, page 2, line 32, leave out

'the exemption condition or the significance condition'.

Amendment 68, page 2, line 34, leave out subsections (2), (3) and (4).

Amendment 93, page 2, line 36, leave out from 'until' to end of line 42 and insert

'the referendum procedure set out in subsection (2A) below has been completed.

'(2A) The referendum procedure is completed if-

(a) a decision has been taken by either or both Houses of Parliament not to hold a referendum, whether by agreeing with a recommendation from the Committee that a referendum is not required or by disagreeing to a recommendation from the Committee that a referendum is required; or

(b) a referendum has been held throughout the United Kingdom, or where the treaty affects Gibraltar, throughout the United Kingdom and Gibraltar, and a majority of those voting in the referendum are in favour of approval of the decision.'.

Amendment 4, page 2, line 43, leave out subsection (3).

Amendment 5, page 3, line 1, leave out subsection (4).

Amendment 64, page 3, line 3, leave out from '4' to 'and' in line 4.

Amendment 65, page 3, line 4, leave out '(1)(i) or (j)' and insert

'(1)(a), (d), (e), (f), (g), (h) (i), (j), (k), (l) or (m)'.

Amendment 66, page 3, line 4, after '(1)', insert '(g), (h)'.

Amendment 88, in clause 4, page 3, line 8, before '(1)' insert-

'(A1) A treaty or Article 48(6) decision which falls within this section shall be subject to the procedure of determination by the Committee and both Houses of Parliament as to whether a referendum is required'.

Amendment 89, in clause 5, page 4, line 10, leave out

'the required statement before Parliament' and insert

'the treaty and the required statement before the Committee and before Parliament'.

Amendment 90, page 4, line 14, leave out

'the required statement before Parliament' and insert

'the decision and the required statement before the Committee and before Parliament'.

Amendment 7, page 4, line 17, leave out subsections (3) to (5) and insert-

'(3) The required statement is a statement that there will be a referendum on that treaty.'.

Amendment 91, page 4, line 19, leave out subsections (4) and (5).

Amendment 11, page 4, line 24, at end add-

'(6) If the Minister's opinion is that the effect of that provision in relation to the United Kingdom is not significant the Minister must seek Parliamentary approval for his opinion.

(7) Parliamentary approval is given if-

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves of the Minister's opinion; and

(b) each House agrees to the motion without amendment.

(8) If the Minister fails to obtain Parliamentary approval for his opinion the significance condition is not met.'.

New clause 9- European Union Referendum Committee

'(1) There shall be a Committee, to be known as the European Union Referendum Committee, to examine-

(a) any amendment of the Treaty on the European Union or the Treaty on the Functioning of the European Union, whether by simplified or ordinary revision procedure;

(b) any decision already provided for in those treaties, as set out in Schedule 1 to this Act;

(c) any treaty or Article 48(6) decision as defined in section 4 of this Act; and

(d) any decision as set out in section 6(2) or 6(4) of this Act.

(2) The Committee shall report to Parliament in respect of each such treaty amendment or decision as to-

(a) whether it involves a significant transfer of power or competence, and if so

(b) whether it requires a referendum to be held.

(3) When the Committee has reported its view as to whether or not a referendum is required, a Motion shall be moved in each House of Parliament to give effect to that recommendation.

(4) If both Houses agree to recommend a referendum, a referendum shall be held accordingly.

(5) The Committee shall consist of no more than 19 Members, drawn from both Houses of Parliament, none of whom shall be Ministers of the Crown.

(6) The members of the Committee shall be nominated by the Speaker of the House of Commons and the Lord Speaker of the House of Lords respectively, in accordance with the Standing Orders or Resolutions of their respective Houses, and subject to the approval of their respective Houses.

(7) Members of each House shall be members of the Committee until discharged by their House or if they cease to be a Member of that House or if they become a Minister of the Crown.

(8) The Committee shall elect a Chair from among those of its members who sit in the House of Commons.

(9) The Committee may determine its own procedure, which shall be broadly in line with that followed by Joint Committees of the two Houses.'.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

The week before last, the House enjoyed an excellent debate on the sovereignty clause of the Bill. Perhaps surprisingly, there was a high degree of consensus on the need to ensure that Parliament remains central to our democracy. Indeed, it must be said that even the Government appeared to acknowledge that there was at least a genuine debate on whether Parliament owed its sovereignty to common law or whether sovereignty was a fundamental right. Consequently, we look forward to seeing how the Government rewrite the Bill's explanatory notes to acknowledge that debate.

That makes it all the more surprising that part 1 of the Bill so profoundly departs from the consensus established in the House that Parliament is central to this country's democratic process. The Government do that by proposing that most extensions of EU competence or power, even relatively small ones, should be subject to a referendum if the change has a material impact on the UK's relationship with the EU.

The Government set out in the Bill in mind-numbing detail umpteen scenarios when a referendum might be triggered. The Opposition believe that there is a case for referendums to be held on important constitutional issues. For example, in government, we introduced referendums on devolution in Scotland and Wales, and indeed, there will be a further referendum in Wales on 3 March.

Photo of Anne Main Anne Main Conservative, St Albans

With reference to the hon. Gentleman's remarks on holding referendums on fundamental matters that affect the UK, does he regret not giving us a vote on the Lisbon treaty?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Not at all, because it is pretty obvious to anybody who has given the matter any detailed study that there is a fundamental difference between a proposed constitution on the European Union and the treaty of Lisbon.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

I am sorry, but having written the constitution and having read the Lisbon treaty, I think that it is sheer sophistry to go on like this. May I just-

The Chairman:

Order. We are not dealing with the Lisbon treaty. Can we please stick to the amendments before us?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

With all due respect to my hon. Friend, it was not she who wrote the treaty or the constitution; she made a contribution, as did many people.

We support a referendum on the alternative vote system, and we believe that a referendum should be held if ever there is a European constitution or if any Government favoured Britain's joining the single currency. I remind the Committee that Baroness Thatcher declined to hold a referendum on the Single European Act, and that the Foreign Secretary voted against a referendum on the Maastricht treaty when he was in opposition.

Photo of Richard Fuller Richard Fuller Conservative, Bedford

The issue is that the Labour party promised a referendum and then reneged on it when in office.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I will stick to the point. It is really important that Members recognise that there is a fundamental difference between the constitution and the treaty of Lisbon. I am more than happy to explain those differences, with your permission, Mr Hoyle, but I know that you want us to pursue the issue under discussion.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

On Europe, is not the real lesson that when in government, we do not give referendums, but when in opposition, we ask for them?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I do not think that is the case at all. There are certain principles at issue that it is important we consider. One of the things that has marred the debate about Europe is the fact that too much expediency has been demonstrated. We need to talk about principles, and I would argue that an important one is at stake here. We have to make it clear that we are talking about political consistency, of which there is little among Government Members. Only in January last year, an hon. Gentleman said:

"The Conservatives want a referendum on the bulk purchasing of paper clips. That is nonsense. It does not stand up to any serious scrutiny, and I do not believe that if they were in government, they would put forward this proposal."-[ Hansard, 19 January 2010; Vol. 504, c. 238.]

I am tempted to have a competition to see whether anyone knows who might have said that, but I will just tell the Committee instead: yes, it was a Liberal Democrat, and yes it was the Under-Secretary of State for Business, Innovation and Skills, Mr Davey-so much for consistency; so much for principles.

One of our main concerns about the Bill is the proposal that referendums could be held on highly technical issues that are not of constitutional significance. I am not suggesting that a future Labour Government would want to change the European treaty, but are the Government seriously suggesting that we should have a referendum on changing the voting system in the Council of Ministers on the environment from the special legislative procedure to the ordinary legislative procedure ?

Photo of Claire Perry Claire Perry Conservative, Devizes

I appreciate the point that the hon. Gentleman is trying to make, which is that there is a lot of complexity and a precise attempt to define the conditions under which referendums would be held, but surely it is better to ask the British people to make up their minds than to wriggle out of one fundamental promise on the whole constitutional question of whether we should be signed up to the Lisbon treaty. My constituents would far rather have the opportunity to vote on these things than have 13 years of broken promises.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

With all due respect to the hon. Lady, it was her party that reneged on the commitment to have a referendum on the Lisbon treaty. Government Members could have had a referendum had the Government kept their promise, but it was they who decided not to have one despite their commitment to do so.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

The hon. Gentleman will forgive me, but my recollection of the history is that the treaty was ratified and then it became impossible to have a referendum on it. Would new clause 9 not enable a Government to make a promise at election time to hold a referendum and then wriggle out of it under the cover of some committee, as the previous Labour Government did?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

This party does not make promises which it breaks. [ Laughter. ] I would point out to Government Members that, as I recall, there was a clear commitment on the Lisbon treaty. Claire Perry cannot get out of that by saying, "Well, it was already endorsed. It was ratified. We couldn't do anything about it," because they could have done. If the Conservatives had wanted a referendum on a treaty change, they could have had one. It is political will that this Government lacked.

Although I am not suggesting that a future Labour Government would want to change the Lisbon treaty, are this Government serious about introducing some of the changes that they claim they want to introduce? Are they seriously suggesting that we should have a referendum on the voting system for introducing a European patent, for example? Are they seriously suggesting that we would have a referendum on how judges are appointed to the European Court? [Hon. Members: "Yes."] It seems that some Members are quite happy to have referendums, even on the proverbial paper clips. But seriously, the place to make a decision on the merits of any potential changes that are not of constitutional significance is in Parliament.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

Is it not in fact remarkably important to have a detailed Bill that sets out all the conditions? The habit of Europe has been to accrete power by stealth; therefore, when added together, things that seem to be minor turn out to be creating a European Government, about which the British people should have the choice.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

There are two problems with that intervention. The first concerns the issue of detail. We have already seen the Government getting themselves into a right knot, bringing forward new amendments to plug some of the gaps that they have left. My guess is that, even at the end of the day, if this Bill goes through, there will still be gaps. The other issue concerns constitutional creep, and I will come to that point later, because there are exceptions in the Bill, which I will touch on.

The role of Parliament should be absolutely central to the issue of Europe-and, indeed, to all our deliberations. It is Parliament that should formally and properly consider such issues; it is Parliament that should devote the time to focused debates and deliberations on the pros and cons of any change; and it is Parliament that is accountable to the people. Hopefully, before too long there will be a House of Lords that is wholly or partly elected, and then both Houses will be answerable to the people for their actions. That is surely the essence of representative democracy. Indeed, in recent times the most authoritative inquiry into the role of referendums has come from the Lords Select Committee on Constitution, whose report was published last year. After hearing from many witnesses, the Committee concluded:

"The balance of the evidence that we have heard leads us to the conclusion that there are significant drawbacks to the use of referendums."

It continued:

"Notwithstanding our view that there are significant drawbacks to the use of referendums, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues."

That report is important and should be acknowledged. However, it is not just the opinion that that House expressed that is significant; the evidence that was submitted is also important. In an important appendix to the report, it was pointed out that the distinguished commentators David Butler and Austin Ranney had noted that

"while the vast majority of democracies" throughout the world

"have held referendums, only a few have institutionalised them, and used them in anything other than an ad hoc fashion. The vast majority of referendums are held at founding moments: decisions about joining a state or federation, accepting or rejecting new constitutions, or making constitutional revisions."

If the Bill reaches the statute book in its present form, not only will it be at odds with common sense; it will also be out of step with most of the world's democratic states. And before any Members think that the Lords Constitution Committee was packed with Labour Peers, I would simply point out that they were in a minority on the Committee.

In the second excellent report produced by the European Scrutiny Committee, chaired by Mr Cash, one of the key witnesses, Professor Simon Hix, lucidly made the case for the limited, rather than widespread, use of referendums. I would not agree with everything that Professor Hix argued, but he was absolutely right when he said that

"Referendums are a legitimate tool, but often they are not regarded as legitimate unless they are on major constitutional questions. In a democracy we believe that ultimately sovereignty resides with the people, so it is legitimate that referendums should be used for major constitutional changes."

Professor Hix was correct in his argument about major constitutional issues. He was also correct to question the wisdom and legitimacy of referendums on much smaller, technical issues.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

I understand the logic of my hon. Friend's argument, but, given the profound changes since 1975 in the prospectus set out by members of all three parties in the House, is there not now a thirst among the public for a referendum, either on whether we should be in or out of the European Union or on some of the other issues of major constitutional significance-from the Single European Act to the Lisbon treaty-on which they have not been consulted?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I have to say that I have not had one constituent come into any of my surgeries since the last election-or, indeed, during the last Parliament-to raise this issue with me. People are concerned about their jobs, their livelihoods, and, under this Government, their falling standards of living. Those are the issues that we should be focusing on. Nevertheless, we are addressing the issue before us today, the European Union Bill.

Photo of George Freeman George Freeman Conservative, Mid Norfolk

On the subject of what we were sent here to do, I can assure the hon. Gentleman that the people of Mid Norfolk sent me here to speak up against their powers being given away without their consent. He quoted the evidence to the European Scrutiny Committee. In written evidence, Professor Philip Allott, professor emeritus of international public law at Cambridge, said:

"The Bill has a whiff of revolution about it. It is a Boston Tea Party gesture against creeping integration...So far as I know, no other member state has anything remotely approaching the degree of parliamentary involvement which the Bill would create".

The Bill might not be perfect, and it might not be the ideal mechanism, but does the hon. Gentleman acknowledge that the Government are trying to ensure that the creeping integration that my hon. Friend Jacob Rees-Mogg referred to earlier is prevented in future?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I have read all the evidence submitted to the Committee, and the significant point about that particular quote was the use of the word "gesture". The Bill is a gesture, and I will say more about that later. It is a gesture to placate hostility to the European Union among Government Back Benchers, but it is not a serious, considered piece of legislation.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The hon. Gentleman has referred to Professor Hix's evidence to the European Scrutiny Committee. Will he note that the professor also said that previous EU amending treaties-Maastricht under a Conservative Government and Amsterdam and Nice under a Labour Government, as well as the Lisbon treaty-should all have been subjected to referendums? If the conditions of the Maastricht referendum campaign, which I founded and which had about 750,000 signatures, had been implemented by the Government at the time-let alone those for Amsterdam and Nice-is it not right to say that we would not be sitting here today discussing this nonsense?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I am aware of all Professor Hix's comments, and I was careful to say earlier that I did not agree with all his remarks. The point remains, however, that he is fundamentally opposed to the idea of having a multiplicity of referendums, for the reasons that he outlined to the Committee.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

The hon. Gentleman will correct me if I am wrong, but I believe that Professor Hix also went on to say:

"I think there should have been a referendum on Maastricht, on Amsterdam, on Nice...on the Lisbon treaty".

That is surely significant. The Bill is all about ensuring that, having been cheated of referendums on those treaties in the past, we can now have referendums on other matters, enabling the House to give greater consideration to them before passing away powers to Europe. The committee proposed in the hon. Gentleman's new clause 9 would not achieve that.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

With all due respect, I must point out that the hon. Gentleman has made exactly the same point that Mr Cash has just made. I therefore give him the same answer: I was careful to say earlier that I did not agree with all of Professor Hix's comments, but the central thesis that he presented to the European Scrutiny Committee was that there should be referendums on major constitutional issues, not on the minutiae of legislation as is proposed in the Bill, and this Bill is what we are now debating.

It is important for us to recognise that having a proper national debate on technical issues presents a real problem. If this were to happen, it might mean that debates focused on other issues and voters might not vote on the question on the ballot paper. That is perhaps a fundamental problem with all referendums, but it is certainly the case with referendums on issues that are highly technical and very specific. A second problem is that such referendums might attract only very low turnouts. For many people, a shift from unanimity to qualified majority voting in the Council of Ministers on the issue of permanent structural co-operation might not be a huge motivator to come out and vote.

Photo of Anne Main Anne Main Conservative, St Albans 4:30 pm, 24th January 2011

I cannot believe that the hon. Gentleman really means to imply that the voting public are so dim that they cannot understand the question asked of them. I seriously hope that that is not what he is saying.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

The hon. Lady should realise that all Members have had enormous difficulty understanding this Bill. Can she, hand on heart, say that she understands every dot and comma of the Bill before us? Please answer.

Photo of Anne Main Anne Main Conservative, St Albans

With the greatest respect, I think the hon. Gentleman is dodging the question. I asked him whether he felt that the voting public were too dim to understand the question put on a referendum, as he seemed to imply that they were.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

What I am saying is that if some of the questions implied by the Bill were put, no reasonable human being, including Members in this House, would understand what on earth the debate was all about. Nobody would. Debating how many angels can stand on the head of a pin might be okay for the middle ages, but it is unlikely to enthuse people in 21st century Britain.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

I may well be more in sympathy with the hon. Gentleman's position than some of my colleagues on the Government side, but is he not aware-I appreciate, as he said, that he might have some difficulty understanding all of the Bill-of the "significance" provision in clause 3(4)(b)? Surely that is designed to guard precisely against the possibility of having referendums on minutiae.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

It is interesting to hear the hon. Gentleman refer to the exceptional clause in that way. I will come on to the very interesting point that he has raised, which I am sure would not be shared by many Conservative Back Benchers.

Let me pursue my argument. These two factors-the lack of proper debate that having a referendum on a small technical issue would mean, and the low turnout-might lead to a questioning of any referendum result. For example, I cite Professor Hix again in his evidence to the European Scrutiny Committee, when he referred to the example of Texas. I heard a Government Member earlier making a sedentary comment about the USA, so let us look at this example from Texas. It has referendums in local communities on whether smoking or drinking should be banned. I am sure that everybody understands the questions, but they have a referendum on the same issue every year. Why? It is because people keep on questioning the validity of every year's result because the turnout is so low.

The Bill implies that this Parliament can bind future Parliaments, but we all know that this cannot be done constitutionally. It is an interesting point, as the Government have made it clear that they do not intend to test the legislation. Perhaps one of their amendments might do so, but generally speaking, they do not intend to use this legislation-it is intended for something in the future. I would argue very strongly that there is a constitutional question mark over that.

I also believe that the Bill weakens the role of Parliament because it obliges Parliament to pass on much of its decision-making capacity. Yes, it is true that the Bill gives additional responsibilities to Parliament in some areas, which we will debate at a later stage. The Bill's most important impact, however, will be to weaken the role of Parliament. I would even suggest that the Bill's whole approach is crudely populist and fraught with practical problems and constitutional risks.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

The hon. Gentleman's comments seem to be a diatribe against all referendums anywhere and are not specific to the Bill. Of course a referendum is populist; it is the most direct form of gauging the popular will. The approach of his argument seems a complete waste of time.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

That is completely untrue. My argument is that there is a clear distinction between important constitutional issues and detailed minutiae. We can argue about the constitutional issues, but there is a big difference between them and a referendum on a raft of detailed minutiae. That is the big difference, which the Bill fails to acknowledge. The Bill is about having referendums on not the big issues, but the small, relatively unimportant ones.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

It might come as a great relief to my hon. Friend to learn that I totally agree with him on this occasion. The Bill would weaken Parliament. Does he not find it extraordinary that a Bill that is meant to strengthen Parliament has in clause 5 a provision whereby, if in doubt, the matter will be given to the courts, which we cannot even remove in the way we can a Government, so it is an abdication?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I thank my hon. Friend for that intervention; she makes a good point. However, the matter might not be quite as she has said. I will address that point later in my contribution, if I may.

Amendment 85 seeks to reaffirm the role of Parliament by giving it the power to consider and decide whether a proposed European change is significant enough to hold a referendum on. A special Committee of both Houses-we call it the referendum Committee-would be established, and it would consider the fine detail of the Government's proposal. A recommendation would then go to both Houses, and if both Houses agreed that the change was important enough to warrant a referendum, a referendum would be held.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

Will the hon. Gentleman tell the Committee what would happen if one of the Houses of Parliament took the view that a referendum should take place, and the other took the view that it should not? Is that not an inherent contradiction in the Opposition amendments?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

It is important that Parliament speaks with one voice, so both Houses would, under our proposal, have to give a positive vote in favour.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

I understand the hon. Gentleman's purpose, but it is conceivable that the House of Commons would reach one view on whether a referendum is required, and the House of Lords would reach another view. How do the Opposition intend to settle that discrepancy?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Before too long, we hope, both Chambers would be elected. Therefore, we believe that it is important for Parliament to speak with one voice. Under our amendment, Parliament would be centre-stage in the whole process. Parliament, and Parliament alone, would decide whether a referendum ought to be held, which is far preferable to referendums being decided according to abstract criteria under this ill-conceived Bill. It is also far better than allowing the Government to make the decision.

Photo of Claire Perry Claire Perry Conservative, Devizes

I am intrigued to know whether the workings of the proposed Committee would have come into force when the previous Government decided, without, I believe, a debate on the Floor of the House, that the Lisbon treaty was not the same thing as the EU constitutional treaty and therefore could be signed. At that point, would his Committee have intervened, given the definitional question of whether it was an EU constitutional treaty, as Open Europe and most of the country believe that it was?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I have argued consistently that that was not the case, but the new Committee, drawn from both Houses, would consider all changes that occur inside the European Union and that have a direct impact on the United Kingdom. We can discuss what is significant and what is not, but my point is that the proposed Committee would come to a considered view on what was important and what should warrant a referendum.

I emphasise this point because we are concerned about the extent to which the Government will have discretion to decide what goes to a referendum. We are concerned because we fear that the Government's rhetoric does not match the reality of their Bill. I am sure that the Minister is absolutely sincere in his intention to give the electorate the maximum ability to vote on a range of European minutiae, but just suppose that the Bill is smoke and mirrors. The nature of the proposals before us could turn out to be more apparent than real.

By common agreement, the Bill is one of the most complicated pieces of legislation to come before the House of Commons for many years. As we all know, in legislation the devil is always in the detail, and this Bill contains one heck of a lot of detail. Some Members, including those on the European Scrutiny Committee, have suggested that the Government may be looking for wriggle room. In particular, there has been reference to clause 3(4), the so-called "significance" subsection, which allows the Government to avoid a referendum if they believe that certain EU sanctions or obligations are insignificant. If I were a Government Member, I should consider that very ominous, as little detail is provided.

Photo of David Lidington David Lidington The Minister for Europe

Given the concerns that the hon. Gentleman has just expressed, will he please explain why the Opposition amendments, and in particular new clause 9, would extend the significance test so that the Committee that he proposes would consider whether a decision to join the euro, or a decision to scrap British border controls, was significant enough to warrant a referendum at all?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

The answer is simple. I have faith in Parliament; I do not have faith in this Government. That is the issue that is at stake. I think that many Members have twigged that the subsection is very significant.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

Will the hon. Gentleman address the question asked by my hon. Friend the Minister a bit more seriously? New clause 9(2) makes it clear that the Opposition are suggesting that there could be significant transfers of power that did not merit a referendum. Will the hon. Gentleman give us an example of a significant transfer of power that he thinks should not merit a referendum? The principle is there in his new clause.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

There is a fundamental point here. We are not second-guessing Parliament's view. These are essentially subjective statements. I think it wrong for the Government to pretend that there can be predetermined formulas that will suit any eventuality. They know in their heart of hearts that that is not possible in the real world, which is why they have come up with the "significance" subsection.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

I am grateful to the hon. Gentleman, who is being very patient. However, he is not second-guessing the Government; he is proposing an amendment to the House of Commons. He is proposing that there should be a dual key before a referendum is held. First, a proposal should be significant; secondly, his committee should recommend a referendum. That implies the possibility of a significant transfer of power that would not require a referendum. It is his proposal; I am simply asking him to explain it to the Committee.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

What I am saying is that it depends on how "significance" is defined. I propose that, rather than our accepting a formula stating what is and what is not significant-which, as the Government themselves recognise, would fall at the first hurdle-responsibility for deciding what is important should be in the hands of parliamentarians. That would mean a transfer of decision-making power from the Executive to Parliament, of which we are in favour.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

In our system the Government are drawn from the largest party in Parliament, and our Committees have a tendency to reflect the composition of Parliament. Would my hon. Friend's committee also have an inbuilt Government majority?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs) 4:45 pm, 24th January 2011

That would be for the House to decide, which is why this is important. We are talking not simply about the Commons, but the Lords too. We must recognise the need to go beyond crude party politics, but this Bill does not do so.

Several hon. Members:

rose -

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I must make progress, because other Members will want to speak in this debate.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

No, I have made my decision.

I have referred to the significance provision but, as if that were not enough, the Bill also contains the exemption condition. If the significance provision is the smoke, the exemption condition is surely the mirrors. With a striking lack of clarity, clause 4(4) refers to "the codification of practice"-one hon. Member mentioned that earlier. That could lead to a significant extension of competences by European Union institutions, yet the Bill does not provide for a referendum on such matters.

Clause 4(4) then stipulates that changes that apply

"to member States other than the United Kingdom" should not attract a referendum. That may appear reasonable but, given that this country is an integral part of a single European market, it is impossible to say with any degree of certainty that anything happening in the rest of the European Union would not have an important impact on this country.

In addition to all that is the most amazing exemption. In a Bill that claims to be about giving the electorate the ability to make decisions on important changes affecting this country, the

"accession of a new member State" is expressly excluded in that regard; accession will not trigger a referendum. Where is the logic in saying that we can have a referendum on whether or not a voting system should be changed for the appointment of judges, but not on whether Turkey joins the European Union? Does the Minister seriously suggest that Turkey joining the European Union would be of no consequence? Does he seriously believe that the membership of Turkey, a country of more than 70 million people, will not affect the United Kingdom's vote in the Council of Ministers? The Minister is a nice chap, but surely he cannot honestly believe that Turkey's membership will not have a significant impact on Britain's role in the European Union?

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

I understand the point that the hon. Gentleman is making, but surely the issue under discussion is the transfer of power to Europe and that transfer triggering a referendum. What powers does he think would be transferred from the British to the European level in the event of Turkey joining the European Union?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

The ultimate decision-making body in the European Union is the Council of Ministers, where, broadly speaking, votes are exercised according to the size of a country relative to other countries. I am suggesting that if a large country such as Turkey joins the European Union, the influence of the United Kingdom will inevitably diminish-that is absolutely simple and straightforward. Given the logic of the Government's argument for this Bill, I find it incredible that that circumstance is painfully excluded.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

I thank the hon. Gentleman for his wholehearted support for the amendment that I tabled on this issue, which, alas, we are not going to get to later this evening. Are we not assuming that Turkey would want to join the European Union? Given the direction in which its economy is going and given that it is already a member of the customs union, it would perhaps be very wise of Turkey to take a step back and have a look at where it is going. I was wondering whether this is approach is a complete change in Labour party policy on this area, and it would be fascinating to know whether the party is for or against Turkish accession. Has the diminution of powers at the Council, whereby the previous Government gave away so many powers in different qualified majority voting circumstances that it sends shudders down the spine, led to Labour Members beginning to tighten up and see that we really should not have given away some of these powers?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Perhaps I should not have given way on that point. I want to go on to make it absolutely clear that the Opposition would like to see Turkey join the European Union. There are a host of positive reasons for that to happen. Our position on the European Union and Turkey's membership have not changed, but I cannot understand how the Government can say on the one hand that they believe in holding referendums on EU changes that affect the UK and on the other that they are against holding a referendum on such a huge issue of great importance to this country. The Government cannot have their cake and eat it.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

May I bring the hon. Gentleman back to the subject of his amendment? Does it follow from what he is now arguing that if the Committee existed he would anticipate that a proposal that Turkey should join the European Union would constitute a significant transfer of power or competence? Does he think that in those circumstances, if the committee reached that conclusion, the decision would require a referendum to be held?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

It is not for me or anyone else in the debate to say what the Committee should or should not decide. I am saying that the Bill expressly excludes a referendum on Turkey's accession, irrespective of whether it is considered important or not, as a matter of principle. The Bill says that there will not be a referendum on Turkey's accession no matter how important it is. That is illogical.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

The simple question that Government Members wish to ask the hon. Gentleman is whether, under his Committee, the proposed referendum on Turkish membership would take place? It is incumbent on him to explain how the proposal that his party has made will work in practice. That is what we are trying to get to.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Who knows who will be on the Committee? Who knows what opinions will be expressed? Who knows on what terms Turkey will join the EU, if it ever does join? The big difference is that we are suggesting that there should be proper, open-minded consideration. We are against a closed book on the issue, which is what this Bill suggests.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

I am reminded of a constituent of mine going to a doctor who gave her some very powerful medicine. When she drank the medicine, she asked, "What will happen to me?" The doctor gave her a reason, but the hon. Gentleman's answer reminds me of the doctor saying, "I don't know what will happen to you if you drink this medicine. I do not know what condition you will be in after you have drunk the medicine. I cannot possibly tell you how it will work out." That seems analogous to the hon. Gentleman's position.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I do not think that it is.

Members have asked about our rationale in tabling the amendment. I believe that we have explained it logically and systematically, but I ask the Minister: what is the Government's rationale in specifically excluding a referendum on accession? Will the Government respond to that? What is the rationale? This is a debate and there is silence from Government Front Benchers-I can only conclude that there is no rationale. There is not, is there?

The situation is quite simple. The Government want Turkey to join the European Union. They consider that to be of tremendous foreign policy importance and they will not allow a referendum to get in the way. That is the truth and they should accept it.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

First, I apologise for saying that I was in sympathy with the drift of the hon. Gentleman's argument. I am certainly not now. I am very puzzled. A minute ago, he was arguing that we should be wary of having too many referendums. He now seems to be arguing for another one. Does he want more or fewer referendums?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Once again, the hon. Gentleman is not following the debate very closely. What we are saying is that these issues should be considered-watch my lips-carefully by a special Committee drawn of both Houses. What we are against is a predetermined conclusion that irrespective of the circumstances, there should not be a referendum on Turkish accession. Although I challenged the Minister to explain the rationale, he declined to do so. I am sure the Committee will draw its own conclusion.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

May I ask the hon. Gentleman a simple question? Is he in favour of a referendum on Turkey's accession to the European Union?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

In terms of this debate, I believe it is important for the special Committee to consider the pros and cons.

Several hon. Members:

rose -

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

No. I will move on. It is important that we realise that as well as the significance provision, the exception provision and the specific exclusion of a referendum on accession of any kind, our good friend the explanatory notes make matters worse and add to the obfuscation of the Bill.

I shall quote from the explanatory notes. Although they are wholly inaccurate and unsatisfactory, they are of some significance. They state that the so-called list in clause 4(4) is "illustrative rather than exclusive," and they continue:

"In other words, there may be other types of treaty change which do not transfer competence or power from the UK to the EU and therefore do not trigger a referendum."

What are the other types of treaty change? Has anyone got any ideas? Has the Foreign Office been rubbing its crystal ball? It is not good enough. There should be a clear indication of what the other types of treaty change are.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The shadow Minister referred earlier to the meaning of the word "significance", and he has just mentioned it again. Is he aware that the "Oxford Dictionary" defines "significance" as

"having a particular meaning; indicative of something", and goes on to give as an example,

"in times of stress her dreams seemed to her especially significant".

Does he know something we don't?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I would not claim that for one moment. I had better move on.

If I am bemused by the Government's exceptions, I am intrigued by their apparent advocacy of judicial reviews as a safeguard for a Government decision not to hold a referendum.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

No, not yet.

When I first read the Bill, I was worried about this complicated piece of legislation, compounded by the lack of clarity about the meaning of "power" as opposed to "competence". I was concerned that it was a potential paradise for lawyers. As I am not an enthusiast for judicial activism, that worried me. I was also worried by the comments of the Foreign Secretary in the Second Reading debate.

Then I delved deeply into the how and why of judicial reviews, and in particular the circumstances in which they are held and the criteria that they examine. The House of Commons Library, as always, provided excellent objective information, and with forensic precision the European Scrutiny Committee carefully examined whether, in the case of the Bill, judicial reviews are likely.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

I shall try again. In the context of the Bill, does the hon. Gentleman believe there should be a referendum on Turkish accession to the EU?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I was talking about judicial reviews. I cannot see how that fits into judicial reviews. With all due respect, I know the hon. Gentleman is a new Member, but he should follow the debate.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs) 5:00 pm, 24th January 2011

No, I will not give way.

I asked the House of Commons Library whether a judicial review was likely. The European Scrutiny Committee's conclusion was that

"re-course to Judicial Reviews is a more illusory safeguard than the Explanatory Notes imply."

That is important. Surely it would be sensible for the Government to set out clear criteria for reviewing the reasonableness of a Minister's decisions. More importantly, the European Scrutiny Committee report tells us that the courts have already ruled that decisions by Government on whether to hold referendums are political decisions and that the courts have therefore been reluctant to get involved.

That was borne out by the Wheeler case in 2008, in which the divisional court was asked to review the previous Government's decision not to hold a referendum on the Lisbon treaty. It concluded that the issue lay

"so deep in the macro-political field that the Court should not enter the relevant area at all".

If that was the case in the past, it is certain to be the case in the future.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

Is not the distinction that the Bill envisages that, were a Minister to decide that something was not of significance, even though it was of significance, that could be reviewed by the courts in a judicial review? Surely the hon. Gentleman would agree that it is those provisions in the Bill that create the difference and distinguish the Wheeler case and that it is for that reason that the explanatory notes are to at least some extent correct.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Part of the problem, as was mentioned earlier, is that we are talking about a Government making subjective decisions, and the courts have ultimately said that such decisions are political. Given the lack of clarity and the level of obfuscation in the Bill, my contention is that the courts are likely to come to exactly the same conclusion in future.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

I share my hon. Friend's worry about judicial review and the interference of the courts in what should be the business of the House. Given that, does he intend to support amendment 11, tabled by some of our hon. Friends, because it would get over that point?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

The Committee will have to wait to see how we will decide to vote.

I should like to finish the point about judicial reviews. Why do the explanatory notes refer to the so-called safeguard of judicial review on no fewer than four occasions? The reason is obvious: it is an attempt by the Government to give the wrong impression. It is yet another example of smoke and mirrors. The Minister has already promised to amend the woefully inadequate explanatory notes in one respect, but I urge him to rewrite them with regard to judicial reviews.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

On the significance test, why has the shadow Minister skipped over the idea that anything that was judged to be significant would end up being a matter for an Act of Parliament anyway?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

We have not skipped over the issue at all. While we recognise that some people might have a different view on what is significant and important, we suggest that rather than subjectively expressing a view on what is significant, it should be for a purposeful and deliberative forum representing both sides of the House to come to an objective decision on what is of significance, according to the priorities of its members, because they are accountable directly to the people.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

Is that where the hon. Gentleman's proposed committee would ride to the rescue and perhaps solve the problem?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

The important point to stress is that it would not be our committee, but Parliament's committee. We are not saying that it should be a partisan body; its membership should be drawn from all parties in this House and from the other House. To allow the Executive simply to make their own decisions on what is or is not important and on what should or should not have a referendum is to undermine the sovereignty of Parliament.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

There is a slight contradiction. The hon. Gentleman is worried on the one hand about judicial activism and Parliament giving away its sovereignty, and on the other that the judicial review will not be operative anyway. It cannot really be both ways around. He also says that the committee will come to its decision, which will be voted on. Is he promising that when the vote takes place neither House will be whipped, so it will be genuinely independent, or is it just going to be part of the great party machine?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

On judicial activism, I read the explanatory notes, and they gave me the impression that I should not worry if the Government decide not to have a referendum, because there will be the ultimate safeguard of judicial reviews. The notes made that point not once or twice, but four times, and many Members said, "Fair enough; we will have an opportunity to challenge a decision in the courts because we believe that right is on our side and the strength of our argument is self-evident." That opportunity does not really exist, however, because all the evidence suggests that all the Government are proposing, as the European Scrutiny Committee concludes in its report, is an illusory safeguard. At the end of the day, the Executive will decide in many, many areas whether there will be a referendum.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

The hon. Gentleman cannot get away with that. Some of my hon. Friends are concerned, as he appeared to be, about the threat of judicial activism, but as my hon. Friend Jacob Rees-Mogg says, if the judges are not going to engage in the issue, it will be a matter for the House of Commons, not for the Executive. The Executive make a recommendation; it is the House of Commons that decides.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

And I want the House to have more influence and power; I want clause 18 made real. I believe in the sovereignty of Parliament, but the Bill undermines that in pursuit of weak-kneed, ill thought-out populism.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

No, because other Members want to contribute to the debate.

In conclusion, this tortuous Bill is problematic in the extreme. This part of the Bill in particular undermines the centrality of Parliament in Britain's democracy. The convoluted clauses setting out when a referendum will be held are not only complex but contradictory; the significance and exemption clauses place a question mark over the Government's true intentions; and the false impression given in the explanatory notes about judicial reviews is truly reprehensible.

We have tabled amendments that would significantly alter and, we believe, improve this ham-fisted Bill. Central to our main amendment is a belief that Parliament should be at the very heart of our democracy, and such an approach would ensure that the long-standing principles of representative parliamentary democracy were truly upheld. Without the amendment, this part of the Bill is at best a ragbag of half-baked inconsistencies and at worst a recipe for constitutional chaos.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

Before I make the couple of points that I want to make, I suggest to Mr David, as a Welsh Member, that referendums are quite important to people, that they understand simple and basic details and that they can understand, within the questions set, technical and important points. Democracy evolves, it always has done and it always will do, and through the Bill we suggest that referendums are a solid and sensible way forward. We trust the people who elected us in the first place to take a view, if asked, on the issues that the legislation raises.

Photo of Christopher Pincher Christopher Pincher Conservative, Tamworth

Does my hon. Friend know that the most recent referendum in Switzerland, a country renowned for holding referendums on technical and specific issues, had a turnout of 58%-a very high turnout, and probably somewhat higher than the vote many Labour MPs representing Welsh seats received-demonstrating that people will vote when they have to?

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

I thank my hon. Friend, because every time he stands up, he educates me with a fact that I do not know.

The Labour proposals, in particular amendment 92, seek to redefine the referendum condition for UK ratification of amending treaties. As I will spell out in a couple of minutes, the proposed referendum committee would have to ask both Houses for agreement. As my hon. Friend Stephen Gilbert said, there must be agreement by both Houses before there is a referendum. The amendments are anti-referendum, anti-people and anti-common sense.

Currently, the referendum condition is that an Act approving an amending treaty must provide that its approval will not be effective until the ratification of the treaty has been supported in a referendum. Under amendment 92, the referendum condition would require an Act approving a treaty to provide that its approval will not come into force until the whole procedure has been completed. If the hon. Member for Caerphilly is to be believed, that procedure would involve the European Union referendum committee delivering a recommendation on whether a referendum should be held, both Houses of Parliament opposing or agreeing to the holding of a referendum, and a majority being in favour of ratification in a referendum on the treaty. The Bill's main alternative, which is the exemption condition for UK ratification of amending treaties, would remain intact. That means that an Act approving an amending treaty could state simply that the treaty did not fall within clause 4-the definition of a transfer of competence or power-and a referendum would not be held.

Essentially, the hon. Member for Caerphilly is selling us a sop. There would be a whole procedure to go through, but a clause that says that there might not be a referendum would not be amended. Amendment 92 is not clear. It is probable that the redefined referendum condition would be met if an approving Act required a referendum to be held on the amending treaty, and if that produced a supportive result, without the EU referendum committee having made a recommendation on whether a referendum should be held. By seeking to amend some parts of the Bill and to leave other parts standing, the hon. Gentleman is confusing the point. I suspect that that is a deliberate ploy, because I am not convinced that the Labour party is willing to trust the people with decisions about significant moves in Europe. I am not convinced that many hon. Members understand the significance of the amendments.

Amendment 88 suggests that the intention behind amendment 92-both were tabled by Labour Front Benchers-is that no referendum should be held unless the European Union referendum committee has delivered an opinion on whether there should be a free public vote. Amendment 88 makes it clear that all amending treaties or article 48(6) decisions, which simplify provisions, that fall under clause 4 must be referred to the procedure involving the EU referendum committee and both Houses to determine whether a referendum is required. In other words, even treaties or article 48(6) decisions that are deemed to fall under clause 4, which require a referendum under the Bill, would be exempted from a referendum under the Opposition proposals. Again, that would take away the British people's chance to have a say in these important areas.

New clause 9 would establish the referendum committee and the procedure for deciding on referendums on treaties and certain decisions, including article 48(6) decisions. It would report to Parliament in all cases on whether an amending treaty or relevant EU decision

"involves a significant transfer of power or competence, and if so...whether it requires a referendum to be held."

In other words, only if the Committee judged there to be a significant transfer of competence or power would it provide an opinion to Parliament on whether the referendum should be held. For all other decisions, it would not have to report to Parliament. That is a recipe for keeping decisions on which the British people might want a say behind closed doors in this place, rather than for adding more transparency.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Why does the hon. Gentleman assume that the meetings would be in camera? They would not; they would be open and public.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry 5:15 pm, 24th January 2011

That is not what is contained in the hon. Gentleman's amendment. Perhaps we can have this conversation elsewhere at a later date, because I do not wish to take up the Committee's time, but the Labour amendments would confuse the situation. Rather than open up the chance of our having referendums, they would close it down. I would like to think that we will not have to vote on amendment 85, but I fear that we probably will.

I wish to talk about the significance condition in the Bill, and about amendment 11, tabled by my hon. Friend Mr Clappison-an important amendment on which we should divide. The British people have given up on politicians and political parties a bit when it comes to Europe. They elect representatives to this place on party platforms that do not necessarily reflect their views on Europe, because matters European do not stack up in their priorities at a general election. People make decisions based on reforms to the health service, education, defence and a bunch of other matters, and when we ask them how significant Europe is in deciding how to vote, we find that it falls way down the list. They are therefore trusting us, in a way, to do a job for them when we discuss the matter in the House. We, the political classes of this country, and I as a former MEP, have let the people of this country down.

The hon. Member for Caerphilly might say that the Lisbon treaty was not the constitution, but the fact is that the British people do not trust anybody on these matters now. They think that we are all the same, and that whatever we say will simply not happen. As Ms Stuart put it, we are all in favour of referendums when we are in opposition, but we are certainly not when we are in government. I welcome the Bill, because we can say to the British people that that has stopped.

There are matters in the Bill on which a Minister must judge whether something is "significant". I understand the fact that it sets out 44 vetoes, 12 decisions and eight ways of increasing EU competences on which a referendum will be mandatory and there will be no significance test. I hope that the Minister will say in what situations the significance test will be used, because I should like clarification of that point.

I believe that the significance test will apply when there is a possibility of conferring on an EU body or agency new powers or the ability to raise sanctions against the UK. There is a whole list of exciting and interesting EU agencies, and I understand that the European Agency for the Management of Operational Cooperation at the External Borders having an extra competence might not seem a huge issue for the Committee. However, I should like the decision to be taken by the House, not by a Minister. Such decisions are best taken by the Members of this place and those of somewhere else a bit further away. I should like the Minister to state why he believes such minor matters, as it were, do not warrant debate in the House.

Photo of James Clappison James Clappison Conservative, Hertsmere

My hon. Friend is making a compelling case. He is talking about minor matters, but does he agree that the Government concede that they could be significant enough to warrant a referendum? The question is not whether they are significant enough, but who decides whether they are significant enough. Would a Minister alone or the House make that decision?

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

I concur with my hon. Friend. Although I completely trust the Minister, I am slightly concerned that, in future, the role might be played by a Minister who was not so interested in those matters.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

As a former Member of the European Parliament, the hon. Gentleman knows that the decision-making process on those minor amendments is infinitely longer in the European Parliament than in the House. I cannot remember how many Ministers for Europe there were in the 13 years of Labour government, but although I hate to say it, collective memory in this place is vested not in the Minister for Europe, but in the civil service. It is not even a Minister who makes the decision, but the civil service.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

I concur with the hon. Lady. Several manoeuvres have taken place under previous Governments to determine who is Minister for Europe. The incumbents do not often stay in the role for long. Either they are, like the current incumbent, sufficiently ambitious to move up the ministerial pay scale, or they could easily be a journeyman on the way out. There is a historical context to some decisions about conferring a competence on an EU agency, and one needs to know what the agency was formed to do in the first place. I perceive such conferral as part of the mission creep in Europe. The European Commission, in establishing so many new agencies on such a regular basis, creates its own quangocracy.

When I was a Member of the European Parliament, it was difficult to police the spending and powers of an agency that the European Commission set up. Indeed, it was more difficult than policing some of the agencies and quangos that Governments of different complexions established in this country. If those agencies grab power and take more competences-even for a valid reason at the time-it is important that the Minister of the day understands the historical reasons for setting up the agencies and the intended limits on the powers. I was present when Eurojust and Euro-magistrate were set up-all part of the European public prosecutor, which I look forward to debating tomorrow, and all part of a significant salami-slicing approach of taking powers away from individual member states, and building something that nobody particularly wanted.

I understand that any ministerial decision on the significance test has a kind of double lock. It has been drawn as narrowly as possible, and I would therefore like the Minister to answer a couple of questions. First, I want to check whether any treaty change will require an Act of Parliament. I should like to think that Parliament will have every opportunity to vote for a referendum on such a change. That is why I support amendment 11. Secondly, the decision on significance is subject to judicial review to ensure that decisions not to hold a referendum only on genuinely insignificant matters are backed.

Those matters are important because, as I said, they are about getting the British people to trust the decisions that we make on Europe again. No member of the public wants decisions to be made behind closed doors, without reasonable explanation. I emphasise strongly to the Minister that the amendments are not about trust in him, his ability to undertake the role or his decisions. I would like clarification that Parliament will have a say because that is what we were sent here to do.

My hon. Friend Mr Cash has tabled some tempting amendments to which the Minister and Ms Stuart alluded. In amendment 1, my hon. Friend manages to do a fantastic decapitation job on the Bill that would basically put all changes up for referendum. Although there is validity in my hon. Friend's reasoning-he has seen through the years a lot more of what goes on in this place than I have-I do not want everything to be decided by a referendum. The British people will not take that. They want Parliament to say, "These are important decisions and there will be a referendum, a debate in both Houses, or an Act and a vote," and the Bill makes such provisions. We can then choose whether to amend a measure so that it is subject to a referendum because we believe it to be so important. If we think that a subject is insufficiently important, we can decide not to have one. I am tempted by amendment 1, but I am simply unable to support it for those reasons.

I was tempted by amendment 1 because of the accession exemption, which the hon. Member for Caerphilly and a number of hon. Members mentioned. I tabled an amendment on accession to the EU that we will not decide on today, just as we will not decide on many amendments that have been tabled. Amendment 21 is exactly as the hon. Gentleman described it. It would mean that a 3.5% dilution of our voting powers on the European Council triggered a referendum. That is a catch-all-it is completely designed as such-so that we would have a referendum on the accession of big countries.

Given that, amendment 1 all of a sudden comes back into play and I am once again tempted. I would much rather have had a comprehensive and sensible debate on clauses 4 and 5 today or tomorrow or in extra time.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I understand where my hon. Friend is coming from, but there is a difference between significance and the opinion of the Minister on the one hand, and the question of exemption on the other. Clause 4(3) says that certain matters are forbidden territory. I am tempting my hon. Friend by saying that that whole category of exemption should clearly be removed, even if there will be a debate on what is or is not significant.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

I understand what my hon. Friend says and I am quite sorely tempted, but my problem, as I described earlier, is the minutiae that might be sucked in under amendment 1.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I understand my hon. Friend's reasoning, but the specific exemptions are set out in clause 4(4)(a), (b) and (c). I understand that he would not want my proposal to go too far. The British people expect these things, which after all include matters such as Turkey and treaties of the type proposed by the French only the other day, not to be exempted. The British people would be left out and not taken into account on such decisions and treaties, yet they would have the most incredible impact on them. I shall explain that later.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

I always appreciate the lessons that my hon. Friend can teach a humble new Back Bencher and member of the European Scrutiny Committee, and I very much look forward to receiving them, but he makes a salient point. This is about what the people who put us here expect. That is why I ask the Minister please to listen to what hon. Members say about the significance clause and amendment 11. The proposal is not against him; it is about enhancing Parliament and its transparency.

I stood in two European elections, in 1999 and 2004, and I think that when I got elected in 1999, more people voted to evict Bubble from the "Big Brother" house than voted in the European elections that year. There is a massive disconnect in relation to what people want to see, do and say about Europe and how they express their views, and the Bill will give them a reason to be more engaged and interested. I know that it is not perfect; as I have said before, I would very much like an in-out referendum, but that is not provided for in the Bill. However, I would say to those who are keen for us to maintain our relationship with the European Union that maybe, just maybe, a general education of the British people through giving them the power to say yes or no on various European matters would benefit all sides of the argument and could give us proper informed debate inside and outside the Chamber.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 5:30 pm, 24th January 2011

Amendments 1 and 3 stand in my name. My comments boil down to what I said in my interventions on my hon. Friend Chris Heaton-Harris and were somewhat anticipated by the Minister earlier. In a nutshell, I see no reason why clause 2 should refer to an exemption condition or subsection (3) should state:

"The exemption condition is that the Act providing for the approval of the treaty states that the treaty does not fall within section 4."

Without any further let or hindrance, clause 4(4) would exclude from those arrangements that would result in a proposal for a referendum:

"the codification of practice under" the treaties already established

"in relation to the previous exercise of an existing competence", and

"the making of any provision that applies only to member States other than the United Kingdom".

That is, I think, an incredibly important point. Also, as we have debated already, it would remove

"in the case of a treaty, the accession of a new member State", which in this case would include Turkey. In the context of what the Government clearly want to exclude-in other words, their positive policy decision not to allow the British people a referendum on certain treaties of immense importance-they are disavowing the very intentions and principles that underpin the Bill.

I have made that point before over the question of sovereignty, where there is a massive contradiction between what is on the tin and what is in the Bill. I say again that those of us who spoke in favour of the sovereignty of Parliament won the argument, but that was not on the tin and it was not what the Whips-or, indeed, the Prime Minister-wanted, so it was voted down. That does not reflect particularly well-if I may say so-on our democratic system. We are faced with exactly the same point here. We are told on the tin that we will have a referendum on important matters-that is the general idea as explained in the Foreign Secretary's article in The Sunday Telegraph only a week ago-but on examination in Committee, it becomes perfectly obvious that certain kinds of treaty will be excluded. I have mentioned the example of Turkey, but I want to give another specific example of the kind of treaty that would be excluded.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I think that my hon. Friend can wait, if he does not mind.

I want to give an example that deals explicitly with a matter of immense importance that is coming up in the lift. In fact, it is not merely in the lift; the lift has come up and the doors are opening. Monsieur Fillon, the French Prime Minister, came over to see the Prime Minister specifically about this issue, and I have here the exclusive interview in The Times with Monsieur Fillon. I also had the opportunity to meet the French Minister for Europe and discuss the matter with him personally and privately.

There is no doubt about what they want or what they intend, which is effectively a twin-track treaty, which is a treaty entered into between us and the rest of the European Union-that is, with all 27 member states, in order to legitimise it within the framework of the treaty arrangements-so that, on the one hand, they get their treaty, and, within that treaty, an arrangement specifically designed to exclude the United Kingdom, even though we would be gravely affected by it. It would apply only to those other member states.

Clause 4(4) refers to

"the making of any provision that applies only to member States other than the United Kingdom".

They look like innocuous words, but what do they actually mean? That exemption condition-in other words, no referendum, to put it bluntly and simply-means that there would be no opportunity for a referendum if the other member states agreed to go down that route. They may well do that, despite all the protestations to the contrary, some of which were rather subtly indicated by the Prime Minister in his press conference, albeit without excluding the idea of any such treaty; rather, it was merely on the supposition that that might not affect us as much as we believe, or as I believe the British people would believe if they saw it in black and white. What do those provisions include? In particular, they include arrangements of that kind relating to fiscal, political, social and employment measures, not to mention other matters that would affect the relationship between us and the rest of the European Union. A massive juggernaut would be created, through a form of extremely enhanced co-operation between those member states, that would have an enormous impact on the United Kingdom.

I have been looking at the balance of payments between us and the other member states. The figures, which I got from the Library, only bring us up to 2009, before the catastrophe that hit Europe occurred, and they are alarming. The imbalance in the balance of payments between us and the other member states has been moving critically in the wrong direction. I could give the precise figures-I may do so later-but we only have to consider the following example, which was on the "Today" programme this morning. If one had listened to the programme, one would have heard about Belgium, which is in massive crisis, with protests and people on the streets, and no Government for 22 months. Greece is in absolute chaos, with protests and implosion, while Ireland, with its political crisis, is totally imploding. Spain has 4 million unemployed, with 40% youth unemployment and people on the streets on a massive scale today. Similar problems are also occurring in Italy, and there have been riots and serious unrest in France, too.

The bottom line is that Europe is not working according to the economic governance that has been prescribed. Yet under what is proposed, the opportunity to address the very kind of treaty that would enhance the ability to confront us with a massive juggernaut of policies that have been going wrong-policies that would undermine the opportunity to grow from our 45% to 50% investment in Europe-would be severely depleted. That would be the most damaging kind of treaty that could be entered into. Indeed, as I said in The Times on the day that the French Prime Minister came over, it would be the kind of treaty that I would expect our Prime Minister to veto on behalf of the British people. However, we cannot have confidence that that would happen, because of the argument being presented. This Bill was introduced on 11 November, when we know that treaties of the kind that I have just described were already being anticipated, however damaging and disastrous they would be for the very people of this country who, if they knew the facts, would say, "I insist on a referendum on any treaty relating to arrangements of this kind."

It would be an abomination for us to be confronted with the kind of arrangements that are being put into place-arrangements that would be so damaging to our growth and our relations with the European Union. That is why I say that this exemption provision has to be taken out of the Bill, for precisely the reasons that I have given. I do not need to enlarge on that point, but I absolutely insist that these provisions should be taken out. I look to the Minister, if he thinks that I am wrong, to give me a reasoned answer as to why.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

I rise to speak to amendment 11, on which I hope the Committee will have time to vote. The amendment goes to the heart of what is wrong with the Bill. There are plenty of other things wrong with it: it is inconsistent, and all kinds of other things, but let us leave that aside for the moment. Chris Heaton-Harris made an important point when he said that there was not a particularly clear party political divide on Europe, and that there were pros and cons on both sides. Very few people vote for their Member of Parliament because of the candidate's view on Europe. They do, however, have a sense that, in a parliamentary democracy involving the Crown in Parliament, the House will ultimately have to decide on these matters.

What worries me about the whole construct of the Bill, which purports to strengthen Parliament, is that it will actually do no such thing. There is a sense of "Oh God, make me virtuous, but not in this Parliament", and, because one Parliament cannot bind another, God knows what will happen in the next one. However, the default position will introduce the judiciary into the proceedings. It was bad enough that, when we were discussing parliamentary sovereignty, we were seriously asking whether it was a common law concept that would be open to judicial interpretation. It is not. The default position is that there must be a substantive vote in the Commons, and that that must be the ultimate decider if there is any doubt. There are manifold reasons why people have lost trust in the political process, but it is true to say that all parties have a tendency to behave differently once they are in government. They are much less inclined to ask the people than they were when they were out of government.

I am fundamentally in favour of the accession of Turkey to the European Union, but I would not like to go out and campaign in a referendum on that question. The Bill calls for referendums on significant changes. At the time when Turkey might accede to the European Union, its population will be larger than that of Germany. It will be the largest country in the EU by population, and its voting weight would therefore be larger than that of any other country. Anyone who argued that that Turkey's accession did not represent a significant change would be living in cloud cuckoo land.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

My issue with a referendum on Turkish accession is that it would not really be within the jurisdiction of the House. Yes, we can hold a referendum on any transfer of powers from this country to the EU, and potentially veto that transfer. However, if the rest of Europe wanted Turkey to join the EU, we would have very little recourse to any action such as holding a referendum. That is my objection to the point about a referendum on Turkish accession.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

I genuinely do not want to be patronising, but I might be about to sound patronising. An accession treaty would still have to be decided on by this House. We would have a say on whether Turkey would join. We might also go further and ask the people whether it should happen. Also, on the question of the transfer of new powers, there are very few areas-apart from the questions of a European standing army and joining the euro-in which the European Union does not already have powers in some shape or form. So this is not just a question of new powers; it is also a question of the strength of powers. If there were a question on the accession of Macedonia, I could argue that that was so insignificant that it would not affect our powers. However, the accession of a country such as Turkey is massive. So, to respond to the hon. Gentleman's question: this House-or perhaps the people-will decide whether Turkey joins the European Union, because the accession of a member state that would be larger than any of the others represents a significant change.

I shall return to amendment 11. There is so much wrong with this place, and my lungs are still full of dust, so my voice will go at any moment. I am sure that that will be a great relief to quite a number of people, not least those on my own Front Bench.

Amendment 11 states:

"If the Minister's opinion is that the effect of that provision in relation to the United Kingdom is not significant the Minister must seek Parliamentary approval for his opinion", and the approval must be on the basis of a substantive vote. If we make this open to judicial review-I am fully aware that some argue that judicial review is never on the substance, but only on whether the Government misled themselves in the process or incorrectly applied the law-we need to be aware that if this House allows decisions to be taken outside, it will weaken itself.

Let me finish with this observation. If this House has failed-and failed miserably-on one issue, it is on the scrutiny of matters European, although this is no reflection on the European Scrutiny Committee, which does its best. Things move at a very different pace with respect to Europe and they always come in small bits and pieces, making it difficult to judge whether they are significant. We can see what happens with Governments of all parties whenever anyone raises any doubts-over European arrest warrants, for example. On that issue, the previous Government said, "Oh, stop all this paranoia. This is never going to happen. Dream on". Then, from the moment they are in opposition they start saying, "Oh, do you know, I never realised this was going to happen. With hindsight, I wouldn't have done this". That has been the story for the last 30 years. We have a Bill before us now and we have an opportunity to improve it, so let us not start saying that the default position lies with some authority outside this House. The issues must keep coming back to this place and we should vote on them.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham 5:45 pm, 24th January 2011

Is not the logic of the hon. Lady's position that the significance condition in clause 3, talking about the simplified original procedure, should have been in clause 2 and then applied to all issues relating to referendums? Why, then, was that not a Labour amendment instead of the rather strange Committee-based structure that Labour Front-Bench Members have proposed?

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

There are plenty of inherent inconsistencies both in the original Bill and in the amendments. I was involved in the tabling of amendment 11, which makes it clear that if there is any doubt, it should be resolved by this House.

As a final observation, in our Parliament, the Executive always has a permanent majority. We can rely on the strength of this House only if there are sufficient Back-Bench Members who defy their Front-Bench Members. I see the Conservative Benches full of Members, so let me point out frankly that tonight provides them with a chance to show whether they have the guts and the courage of their convictions. They said all sorts of things in the process of their election and now they have an opportunity to defy their Front-Bench team, support an amendment tabled by a majority of Members of their own side and restore faith to this place.

Photo of James Clappison James Clappison Conservative, Hertsmere

What a great pleasure it is to follow Ms Stuart. As to the generality of her comments, I found nothing in what she expressed to the Committee to contradict my experience over five years of the European Scrutiny Committee. I intend to be as brief as possible, because I know that other Members wish to speak and that important amendments on other issues are due for debate later. I am sure that my hon. Friends share my wish to debate those important issues, particularly accession.

Let me say a few words in support of amendment 11, on which I shall seek a separate vote and hope I am lucky enough to achieve it. By way of introduction I should say that, in seeking to establish that a referendum is required before certain steps are taken, the Bill is a great improvement on the existing position. The Bill is also a significant improvement in requiring other steps, such as an Act of Parliament or a vote of this House where a referendum is not required.

I am genuinely concerned, however, that there remain some very significant gaps in the scheme of the Bill, and I believe that it is at this point in our detailed scrutiny that we should try to fill those gaps. It will be very disillusioning for all those whom we have promised and have led to expect that there will be a referendum on great transfers of power or great decisions in the European Union if that referendum does not take place. We want to do all that we can to avoid that sense of disillusionment. It is against that background that I seek to deal with the problem of the significance condition, to which hon. Members have referred.

Simply, amendment 11 would give Parliament a vote on the question of whether certain transfers of power to the European Union are significant enough to warrant a referendum. As the Bill stands, the decision on whether matters are significant enough is in the hands of the Minister alone, subject to a challenge in the courts. Parliament does not get a say, however, at least on the question of whether there should be referendum.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I am listening carefully to my hon. Friend, not least because I put my name to his amendment. If the significance condition was not met, and therefore the Government were not proposing a referendum, do I understand correctly that legislation would still have to be brought to the House? If so, would the House not get an opportunity to give an opinion on whether the significance condition was met in any case? Will he clarify that?

Photo of James Clappison James Clappison Conservative, Hertsmere

I am grateful to my hon. Friend for putting his name to my amendment, and it is indeed the case that, whether or not the significance condition is met, there will have to be an Act of Parliament to give approval to what is proposed. However, there would be no requirement for a vote in the House on whether to hold a referendum, and there should be such a requirement in the Bill. I will endeavour to explain how relying on an Act of Parliament would be very inferior. If hon. Members want an illustration, they will see none better than all the vicissitudes of parliamentary process that we are experiencing this afternoon in trying to amend the Bill. For example, if we do not reach this evening the question of whether to hold a referendum on an accession treaty, the matter will fall, and unless it is chosen for debate on Report, again subject to all the vicissitudes of the parliamentary process, it will simply not get considered, even though it is very important. That might also happen in future, and that is why relying simply on amending parliamentary legislation is very inferior to putting a requirement on the face of the Bill.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

Is there not an important difference, however, between the circumstances today and those that would prevail in the context of future legislation that the Government concluded was not sufficiently significant? Putting such a killer amendment to the Bill would mean that no Member who would have supported that amendment if it had been called should have any reasonable basis to support the Bill on Third Reading.

Photo of James Clappison James Clappison Conservative, Hertsmere

The point could also be made that we have a very friendly Government who have given us five days-we would have liked a bit more time-for debate in a proper way. Those of us who can remember the treaty of Lisbon being taken through the House will remember how guillotines can be applied and how very important issues can go without being debated at all. I seem to remember that we debated the entire foreign and security policy and the question of common defence in about 45 minutes.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

I do not think my hon. Friend will remember a Bill going through the House without going through Third Reading.

Photo of James Clappison James Clappison Conservative, Hertsmere

There is that point, but I think that my right hon. Friend would find that it is all subject to the vicissitudes of parliamentary process, and such a reliance is inferior to placing a requirement in the Bill. In future, if the argument were advanced for a referendum, he and I might see a Minister stepping forward to the Dispatch Box and saying, "It is all very well hon. Gentlemen arguing for a referendum. When we had the European Union Bill, it was decided not to make it a requirement for Parliament to have a vote, and to leave it to the Minister alone to decide whether the matter was significant." To coin a phrase, that would be a killer argument.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

May I put it to my hon. Friend that if we accept the premise of my right hon. Friend Mr Dorrell that there is no point putting the amendment in the Bill because the Act will have to come before Parliament in any case, we might as well ask, "Why are we bothering with the Bill at all?" The whole basis of the Bill is to ensure that the Government's feet are held to the fire over the definition of the treaty. The whole business of significance is totally malleable. If my right hon. Friend the Member for Charnwood does not understand that we need to treat such matters differently from how we treated them in the past, I honestly expect to see him in the Opposition Lobby on Third Reading.

Photo of James Clappison James Clappison Conservative, Hertsmere

My hon. Friend makes a very fair point. Why are we making all the other requirements for a referendum clear on the face of the Bill if we can simply tack something on to Report or Third Reading? Why are we bothering to go through the whole process? To leave out this question, when we are making all those other requirements, would leave a significant gap, and in times to come we might contemplate with some regret our failure to fill in that gap. I cannot see the great problem with requiring a vote of the House to approve a Minister's opinion. On these Benches, and probably in other parts of the House, Members stood on a manifesto that promised greater parliamentary scrutiny, and this is an opportunity to fulfil that promise. I can see no great obstacle to doing that.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

In supporting amendment 11, may I ask my hon. Friend whether he is aware, as I became recently when the Finnish delegation came over, that Ministers in Finland-and certain other member states-have established a very good practice whereby they must appear before the Finnish Parliament's equivalent of the European Scrutiny Committee to ensure that there is compatibility between what goes on in Parliament and what the Minister decides on such important matters?

Photo of James Clappison James Clappison Conservative, Hertsmere

With his great experience, my hon. Friend makes an important point, and there are similar arrangements in the Danish Parliament. The House should seek to have the best arrangements possible. I welcome right hon. and hon. Friends' movement in the right direction, but if they do not move on this point, they leave a significant gap in future. Briefly, I will try to explain how big a gap that could be.

There are only two clauses that cover a statement of significance by a Minister and to which the significance test applies. The others all concern competences or changes in the voting procedure. However, these two clauses are very important, as they cover the transfers of power that are apt to be made under the simplified revision procedure of article 48(6) referred to in clause 4. I will give way to the Minister for Europe, who is looking very interested in these points, if he disagrees with me. The powers on which Ministers will say whether they are significant enough to warrant a referendum, if they are transferred to the European Union, are those that will come to the House as a result of the simplified revision treaty. That important procedure was introduced specially by the treaty of Lisbon. I will give way to any Member, including my right hon. Friend Mr Dorrell, who wants to disagree. That procedure made it easier and quicker to make constitutional change, and to bring about a transfer of power from nation states to the European Union.

We have spent some time debating whether we should have had a referendum on the treaty of Lisbon, the treaty of Maastricht, the treaty of Amsterdam or the treaty of Nice. However, under the simplified revision treaty, a treaty in those forms is not required. There is no requirement for a convention and all the other lengthy procedural steps that preceded the treaty of Lisbon. It is simply a matter that can be agreed between the member states at a Council meeting, and then approved by the individual Parliaments. The whole point of the simplified revision treaty was to make it quicker and easier to integrate powers in the European Union. It is a sort of "speeding up of European integration" provision. The provisions that are subject to a ministerial test of significance are the ones that will ensure that these matters are brought before the House. They embody the procedure of simplified treaty revision. There are only two of them, but they are very important. All the other provisions-or at least the preceding ones, which deal with competence-would require a full constitutional process under the ordinary treaty revision procedure with which we are all so familiar.

Photo of James Clappison James Clappison Conservative, Hertsmere

I shall give way first to Martin Horwood and then to my hon. Friend Charlie Elphicke, who has been waiting very patiently.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Surely the whole point of the simplified revision procedure is that it relates to changes that are relatively uncontentious and therefore insignificant. That is quite an important factor. Moreover, as even those changes will require an Act of Parliament, they will be subject to a vote in the House of Commons.

Photo of James Clappison James Clappison Conservative, Hertsmere

We have just been debating the hon. Gentleman's second point, but I shall say more about it shortly. However, I think that if he studies the Bill he will find that if he votes in favour of the clause, he will be voting in favour of the possibility of a referendum if the Government consider the effect of the provision concerned to be significant enough. It is not a question of whether it might be significant enough, otherwise the clause would not be in the Bill. If a Minister says that it is significant enough there will be a referendum, and I welcome that. It is a question of how we decide whether it is significant enough for a referendum. Should we leave that decision to a Minister, or should it be made by means of a vote in the House of Commons and the other place?

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I find amendment 11 very attractive, because it would ensure that the Minister was subjected to a vote in both Houses. But what would happen if sweeping powers were passed to the European Union which anyone would describe, objectively, as significant, if both Houses were whipped to ram the legislation through, and if they did so? Where is the backstop to ensure that the British people are not cheated out of a referendum in such a case?

Photo of James Clappison James Clappison Conservative, Hertsmere

It would be a matter for this House and the other place to express their opinion and to vote for a referendum. That is in addition to all the other procedural steps contained in the Bill. It is not a case of either/or. We propose a further process: indeed, a further safeguard against the granting of significant powers to the European Union, as well as the powers for which the Bill already provides. I know that my hon. Friend is concerned about that issue.

Photo of James Clappison James Clappison Conservative, Hertsmere

No doubt the hon. Gentleman will try to persuade me that the Bill does not say that that is significant enough for the holding of a referendum. I think that, if he reads the Bill carefully, he will find that it is.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

The hon. Gentleman is being very generous with his time.

Surely even provisions that the Minister considers to be insignificant must be subject to a vote in the House of Commons, as an Act of Parliament will still be involved, and surely the backstop referred to by Charlie Elphicke is the ability of Members to vote against the Bill concerned and defeat it if they disagree with it so strongly.

Photo of James Clappison James Clappison Conservative, Hertsmere

I do not wish to be unkind to the hon. Gentleman, but I believe that I dealt with that point in my reply to my hon. Friend the Member for Dover. As I have said, this is not an either/or situation; the amendment provides an additional safeguard. I repeat that the powers that are transferred may or may not be significant, and this House and the other place may or may not vote in favour of the transfer. It is a question of whether the decision is made by Parliament or by an individual Minister-a Minister of the Crown, as the Bill puts it.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

As my hon. Friend knows, I have considerable sympathy with his amendment, but I wonder whether he may be looking a gift horse in the mouth. Given that an Act of Parliament is superior to a resolution of the House, if a resolution of the House were rushed through with remarkably little time and heavily whipped, it would be a great deal harder to insist on a referendum when the stage of the Act of Parliament was reached. Although, on first reading, I rather like my hon. Friend's amendment, I am increasingly concerned that if it were passed, those of us who wish to insist on a referendum would have a harder task to fulfil.

Photo of James Clappison James Clappison Conservative, Hertsmere

My hon. Friend has clearly given the matter great consideration, but I think that he is wrong, and that if others agree with him, they are wrong as well. The procedure for which my amendment provides is exactly the same as that which the Government propose in other parts of the Bill relating to other transfers of power, including those relating to the title V provisions on justice and home affairs. If my proposed procedure is defective, so is the Government's proposed procedure, because the terms of the amendment are the same as the Government's. If the Minister's opinion was that the effect was not significant enough to warrant a referendum and Parliament did not agree with that opinion, there would have to be a referendum, because the significance test would not have been met. That provision is in the Bill, so I do not think that it could be any stronger.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The opinion of the Minister will in fact be the opinion of the Whips, who will wish to ensure consistency in the Act of Parliament to which reference has been made. For practical purposes, my hon. Friend is right. If Parliament has said that it does not approve of the opinion of the Minister, it will be an awful lot more difficult for the Bill to be whipped; and if the Whips did that, they would be in defiance of the very sovereignty to which I have referred repeatedly during our debates on the Bill.

Photo of James Clappison James Clappison Conservative, Hertsmere

My hon. Friend is right. The amendment follows the scheme of the Bill. Unless a Minister says that the transfer of power is insignificant, there will have to be a referendum, because the significance condition will not have been met. The amendment provides that if the significance condition is met because the Minister says that the transfer is sufficiently significant, there must be a vote in the House to prove that what the Minister has said is correct, and if the significance condition is not met, there must be a referendum.

Broadly, the question is this: does Parliament decide, or does a single Minister decide? The Government propose that a single Minister should decide, but, as my hon. Friend knows, there is a fall-back position, namely that the Minister should be challenged not in the House but by means of judicial review. I find that somewhat strange, as did some of the distinguished academic witnesses who gave evidence to the European Scrutiny Committee.

Under the Bill, if one of our constituents is aggrieved by what the Government propose, his recourse will be not to his Member of Parliament but to the courts, through judicial review. I think that that in itself sends a very odd signal. What should I tell a constituent who comes to my surgery and complains about the European Union, as some of my constituents do when it introduces a regulation that has an adverse effect on their jobs or companies, or when they disagree with some transfer of power? Should I say, "I am sorry. You may want a referendum, but you have come to the wrong place: you need to visit the solicitor's office down the road"? I do not think that that is a very satisfactory state of affairs. We are told that clause 18 entrenches parliamentary sovereignty, but I think that if we adopt the proposal in this clause, we will bypass that.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

A Minister's decision can be subject to a judicial review, and, under the Bill, the House would have an opportunity to insist on a referendum. If, on the other hand, the House voted against a referendum in a resolution, that would not be subject to judicial review, because procedures in the House cannot be reviewed by any court. I am beginning to think that the Government's proposal for an Act is a stronger safeguard, because the Minister's decision could be challenged and then voted on as part of the legislative process, whereas if the House were whipped to oppose a referendum, that would not be subject to any judicial review.

Photo of James Clappison James Clappison Conservative, Hertsmere

I fear that I must part company with my hon. Friend if he is suggesting that our democratic safeguard should lie in recourse to the courts rather than to Parliament. I am afraid that I must put Parliament first. In any event, as was demonstrated by evidence given to the European Scrutiny Committee by esteemed legal experts, it is very unlikely that a challenge to a decision by either a Minister or the House of Commons would succeed in a judicial review. I think that we are being led down a blind alley. In my opinion, even if the possibility of a judicial review of a ministerial decision had been contemplated in the explanatory notes or in ministerial statements, judges would be extremely reluctant to challenge a political decision on the significance of a particular transfer of power. I also believe that the fact that we are contemplating such a step as the main challenge to a Minister's decision risks undermining the House of Commons while not providing any further safeguard.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Although the Committee has rightly said that a judicial review might be considered unlikely in certain circumstances, the key question is what has Parliament said about the circumstances in which a referendum should be required. We should bear mind above all else that we in Parliament should decide what is in the interests of our own constituents. We are here to give them the opportunity on these matters-that is part of the Government's overall case which, regrettably, fails on a number of tests as we go through these proceedings. The object of the exercise is to ensure that the people of this country have the right to decide on matters relevant to their daily lives. Regrettably, the fancy franchises being thrown up by these exemption conditions and significance arrangements are invading the central question, which is whether the people of this country should be allowed to decide after we have made our judgment on their behalf.

Photo of James Clappison James Clappison Conservative, Hertsmere

I am grateful to my hon. Friend for that point. The long and short of it is that the Bill provides that unless the significance condition is met and it is decided that a transfer of power is not significant enough to warrant a referendum-some transfers of power will not be significant enough, whereas others will be-there will not be a referendum. As the Bill stands, the Minister alone will decide whether that condition has been met and this House of Commons will not have the chance for a separate vote, before an Act of Parliament, on whether a referendum should be held. Even if someone were lucky enough to find the time and all the rest of it to table an amendment on this during the consideration of a Bill, it is unlikely for such an amendment to succeed if this is not contemplated in this Bill. The Minister would simply say, "The Government of the day decided that there were certain occasions when a referendum would be required and this was the procedure for dealing with a referendum in these cases. It was decided that a Minister's opinion was the test of significance or not, so this does not apply." I do not see such an amendment as being a successful avenue or a good defence to which to turn.

My amendment would provide an important safeguard, which is in addition to there being an Act. I welcome the provision for an Act, because that is a good thing. To be fair, an Act of Parliament is not required in these circumstances at the moment, because the transfers of power under the simplified revision procedure are simply subject to the resolution of both Houses. The Bill's proposals are therefore a step forward, but we could do so much better. If we do not make the change that I am proposing, we will be leaving a big gap.

Photo of Nick de Bois Nick de Bois Conservative, Enfield North

I am very attracted to amendment 11, but I am struggling to understand one thing. It has been debated, but perhaps my hon. Friend can give me some clarity on it. He rightly says that an Act of Parliament will be required, but a Bill that is whipped will surely get through. Why does he believe that his amendment will be any more successful here?

Photo of James Clappison James Clappison Conservative, Hertsmere

For the same reason that placing something in a Bill is a stronger defence-it has stronger legislative authority-than leaving it to chance in the future. My amendment is a safeguard in addition to the Act of Parliament that will be required, and including in the Bill requirements on a referendum would make things legislatively stronger.

We come back to the question outlined by my hon. Friend Mr Jenkin, "Why put any of these requirements in the Bill and why provide these 44 situations where a referendum is required, given that each time we have an Act of Parliament for a treaty change, as we would have to have, we could simply do the same thing then?" That argument is being run in certain quarters, but it makes a mockery of the whole Bill. I do not want to be too unkind to those who promote that argument, but I merely say that it was fully ventilated during the European Scrutiny Committee's deliberations and it was dismissed, and not only in one report. We produced a majority and a minority report, which disagreed on almost everything but agreed that a change needed to be made on the significance test. When one understands the two spectrums of opinion in the European Scrutiny Committee, one can see the measure of achievement in uniting the two.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

It seems inconceivable that if parliamentary approval for the Minister's opinion were denied precisely because of the arguments that have been heard in the House of Commons, the Government would then say, "We are going to enact this anyway. Parliament has said that it disagrees with the Minister's opinion that such and such applies, but we are going to pass this by way of an Act of Parliament." That is just not real. The real decision would be taken on the assessment of the opinion of the Minister and that would be properly gone into if my hon. Friend's excellent amendment were accepted.

Photo of James Clappison James Clappison Conservative, Hertsmere 6:15 pm, 24th January 2011

My hon. Friend is absolutely right. Hon. Members will just have to face the fact that although the Bill is a step forward and contains very good provisions, we must not leave gaps. If we leave this gap, we leave a get-out clause to be used in the future. Given the volume of change that could come through the simplified revision procedure, that could prove very important indeed and we may regret our decision in time to come. I cannot see what the enormous problem is with having this requirement in the Bill. I am used to hearing the argument that something could be done in a better way and to hearing technical arguments, but my experience is that when such arguments are put before the House, they usually have little real basis. If we want to have something, we should vote for it. I see no reason of policy or substance that is an obstacle to my proposal. Perhaps the Minister will tell us why. He has been very reasonable and persuasive on many other points in the Bill.

Photo of James Clappison James Clappison Conservative, Hertsmere

He has been very charming and dealt with things in a very satisfactory and open way.

Photo of James Clappison James Clappison Conservative, Hertsmere

He has been friendly. He has been a model of charm and ministerial competence, but he has not yet produced any credible reason why we cannot have a vote in Parliament to decide whether something is significant enough to trigger a referendum, as opposed to leaving it simply to a Minister. What is wrong with trusting Parliament?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

I rise to speak to the amendments standing in the names of my Labour Front-Bench colleagues. People elect their MP to speak up for them in Parliament and that is what they expect us to do. They expect us to speak up, to do business for them and to do certain work for them because they have put us here and they cannot spend every minute of every day looking at every detail that they want us to look at. They expect the party in government to tackle the problems of the day. When I say that the general public do not want numerous referendums on technical matters it is not because I doubt their ability to study the issues and make up their own minds-they could of course spend their time doing that. What people tend to say to me is, "Nia, it is your job. You've been elected to do this. We want you to look at these things and tell us the best ways forward." That is not because they cannot do this themselves. They expect us to do the nitty-gritty work on the legislation.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

I understand where the hon. Lady is going with this argument, but is what she is describing not exactly what she is asking the people of Wales to do in a certain referendum in March?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

Indeed. I shall be dealing with that point shortly, because it is very important. There is a huge difference between the attitude now in Wales and the one prior to 1999, when people were very excited and enthused about the setting up of a new institution, there was a lot of media coverage and a lot of people were talking about it. With five weeks to go before the vote on 3 March, people are not particularly interested. They are saying, "This is a technical difference. If it is a matter of making the process better and simpler, so that things can be done in the Assembly rather than in Parliament, could you not just get on with that and do it?" That is not because people are not interested, because they do not appreciate what the Assembly is doing or because they do not accept that we have different ideas about how to run the health service and education and about how to protect the education maintenance allowance; it is because referendum fatigue is setting in. People are saying that on the big issue they want to have a vote-they want to say that there is going to be an Assembly-but on the technical issue they are saying, "You are telling us that there are better ways of doing things. We would like you to look at the detail, rather than for us to have to do that all the time."

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Does my hon. Friend agree that an important issue is involved in the case of the Welsh referendum? It concerns whether the Welsh Assembly will have primary or secondary powers, which is an important constitutional issue. Despite that, it is very difficult to get people engaged and to encourage them to make a decision according to the arguments on that constitutional point.

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

My hon. Friend is absolutely right. That is the problem. The referendum is about the technicalities and that is why it is so difficult to get the media and press interested and so difficult to make it the ordinary subject of conversation in pubs.

Photo of Priti Patel Priti Patel Conservative, Witham

Does the hon. Lady agree that when it comes to issues that are in the national interest, both the public and the media will be engaged?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

Absolutely. That is the important point and that is why we are calling for a committee to be set up. That would provide the opportunity for the issues to be discussed. If the subject were important and interesting, there would be media interest and lots of lobbying and, as with any work that in done in Committee, the issue would become one that people considered. The whole point of having any committee is that it can make that difference. Committees can do the work on the detail. An innocuous little detail can turn out to have a major impact and that point can be uncovered in Committee. Likewise, something that seems quite big to start with will, when it is considered in detail, be shown to do not much more than maintain the status quo.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

As I understand the Opposition's proposals, there will be one committee comprising Members from both Houses, who will then separate and go back to their relevant Chambers to carry the argument in favour of or against a referendum. Perhaps the hon. Lady can enlighten me given that her Front-Bench spokesman was unable to do so. What will happen in the event of a clash between the Houses?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

It is very clear. The idea is that if one Chamber does not think there is a need for a referendum, there will be no referendum. If both Chambers think there is such a need, there will be a referendum. Clearly, the committee's recommendations will be considered and we will ask whether the matter is of major significance. One would expect any matter of major significance to create excitement in both Houses.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

So whereas the coalition proposes to legislate to ensure that the people have a referendum, the Opposition are proposing a committee of Members of the two Houses, both of which have a veto, which will mean that we might not have a referendum at all. Is that the position?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

The hon. Gentleman has to understand that the committee will make recommendations and it is not about what the committee will say. When the committee comes back, we will not all automatically do what it says; it will make recommendations. My hon. Friend Ms Stuart talked about collective memory, what it is and how important it is. The people on the committee might well have an enormous amount of experience and the people who are likely to want to be involved or to consider the detail will have done so previously. As she pointed out, ministerial teams often change and have to pick up a brief very quickly, so they will not necessarily have that knowledge.

The idea is that the committee should consider the detail, sift out what really matters and make a recommendation, but the Houses will not have to take that recommendation at face value. If the issue is of major significance, surely by that time some interest will have arisen, people will be doing their own research and people will be coming to the Chamber with plenty to say.

My constituents are saying to me, "You do the nitty-gritty and sort out the bits and pieces. When you have done that, you can tell us whether you think that this is a matter of major significance." That is the idea-the committee would bring that information to the House and this House, and the other place, would make the decision.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

My understanding of the hon. Lady's position is somewhat unclear. Is she saying that her constituents have delegated to us the responsibility and have therefore no interest in the outcome of a debate on the referendum?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

I am saying that my constituents say that there is often detail to be considered before we can decide whether a change will have a major impact. In the Bill, there seems to be great confusion about what a power actually means. We do not seem to have clarity in the Bill. My constituents are saying, "This is the sort of work that you need to do. When you, in Parliament, can tell us whether you think an issue is significant the door is open for a referendum if that is what you think best."

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

On the point about when the decision is made, will the hon. Lady enlighten me on the subject of the time scale over which the joint committee would report? It is part of a ratification procedure and there needs to be some defined time scale that I do not see in the amendment.

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

The hon. Gentleman raises a significant point. One difficulty about European legislation is that dealing with these issues often takes an enormous amount of time. Often, developments take place over a considerable amount of time whereas a referendum gives a snapshot of the mood of the country at one time. That might mean that people vote on different issues. It is important that the committee would have the opportunity to go through the issues and decide what is and what is not important. The hon. Gentleman knows as well as I do the situation in respect of Europe, what has to be decided and how it has to be ratified.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Given that we are all agreed that any change would be subject to an Act of Parliament, what is to stop Parliament as a whole subjecting the change to such scrutiny and even possibly suggesting an amendment on a referendum as the Act went through? I am sure there would be many volunteers on the Government Benches to draft the amendment.

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

Perhaps it would be better to have a cross-party committee and to take the matter away from the partisan approach. There are many areas on which there is cross-party agreement on Europe and many issues on which feelings are not particularly partisan. I suspect that there are more differences between Members on the Government Benches than there are between Members on the Opposition Benches and others on the Government Benches.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

Is not the constitutional position normally that this House is superior to the other place on manifesto commitments, on finance and on secondary legislation where the law is already decided? Is it not a flaw of new clause 9 that we are giving a veto to the other place on whether we consult the electorate? That is an extraordinary position.

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

I am sure that my hon. Friend will enlighten us a little more on his position later. The important thing is that we are talking about the sovereignty of Parliament and the opportunity for us to have that debate and to have a say. Frankly, I think we all agree that there is a role for a committee to sort out the detail.

In many areas, there is general consensus that we do not want to see swathes of power wafted away to Europe. My right hon. Friend the shadow Chancellor has always made a very forceful case for keeping out of the euro and I dare say that many Government Members agree that that is a good position to take. We are trying to provide the opportunity for greater safeguards and for a committee to consider matters that would sift out the unnecessary and trivial, focus on the issues that matter and ensure that we have the discussions that we need.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I am grateful to the hon. Lady for being so generous in taking interventions. As I understand it, she is saying that she was sent here by her constituents to do the detail, work out the complicated stuff and then tell them whether they need a referendum. Were she selected by Mr Speaker-by an entirely independent process, and not by the Whips, as would seem to be the case-to be on that committee, what sort of detail would there need to be to make her say, "Yes, I vote for a referendum on this issue"? What kinds of subjects does she think would merit referendums?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

We have spent a considerable time in the European Scrutiny Committee listening to experts on particular issues. We would need to ask what powers are being given away, what would not be the same as it is now and where the qualified majority vote would become a simple majority. We would need to ask, "Is that acceptable? Is there an issue of sovereignty? Would we be giving away something that we have always had in this Parliament to a European super-structure?" Those are the things that we would want to consider in detail. The whole point is that the committee makes a recommendation; the committee does not simply live by its own views. I have had few letters or e-mails from anybody about a referendum, even during the last Parliament when there was quite a fuss about it in the media. I must have had three or four letters or e-mails throughout the five years of the previous Parliament, when the matter was quite an issue in the press, so I do not think it is such a huge and exciting topic out there as the hon. Gentleman might think.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry 6:30 pm, 24th January 2011

I thank the hon. Lady for giving way again; it is very kind of her. Following on from the point made by my hon. Friend Charlie Elphicke, the hon. Lady said that the shadow Chancellor had kept us out of the euro. He has ensured that we will never be able to go in, because of our massive level of debt. Would a debate on entering the euro go before the committee before anybody could decide on it in either House?

Photo of Nia Griffith Nia Griffith Shadow Minister (Business, Innovation and Skills)

I will address my remarks to the question before us. The issue that the hon. Gentleman is raises is much wider and would merit full debate in the House before any decisions were made. It may well be outside the remit of the Bill. It is a matter that any Government would want to discuss thoroughly. I can hardly see it being a popular move without proper discussion and consensus.

We need to remain in Europe. We do not want the label that Giscard d'Estaing threw upon us in the Lisbon treaty discussions, when he said that the UK would opt out of this and opt out of that, and that we were for ever opting out. We got a reputation as the country that cried wolf all the time and did not engage with the serious issues. It is important that we do not become the spoiled child of Europe. We must take our part; we must stand up and be counted; and we want a mature and sensible approach to what merits a referendum and what does not.

In conclusion, I fully support the idea of a special referendum committee being set up, which would have as its remit to look into the necessary factors and then make a recommendation to both Houses about whether a referendum were needed.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I see the Bill as a ground-breaking and essential force for good. It is important to understand that the context of the Bill is the reaction that was felt by so many people throughout the land against the denial of a referendum on an EU constitution renamed and rebadged as the Lisbon treaty, but not changed.

It is a pleasure to follow Nia Griffith, and a privilege to hear from a Member of Parliament who has not had the ire of constituents come down upon her head for not standing up for a referendum on Europe. I congratulate her on having a constituency which is clearly full of people who are delighted with the European Union and delighted never to be consulted by means of a referendum. It is a fine constituency that she has. No doubt she has the odd housing claim-

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Surely the hon. Gentleman recognises that people are not concerned about constitutional abstractions. They are concerned about their jobs, their children's education and their health. Those are the issues that matter to people. If he does not realise that, he is not in this world.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

The shadow Minister for Europe makes a fair point. In my constituency, yes, people's prime concern is that Labour all but closed the hospital down and that we will be getting a new hospital. They are concerned that they lost jobs and money. They worry about how they will get by, and about the massive amount of borrowing and taxation. I entirely agree with the hon. Gentleman. My right hon. and hon. Friends in the Government are trying hard to sort out that difficult problem. That will take time.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I take issue with my hon. Friend Mr David. Constitutional matters underlie everything else that happens. For example, constitutionally we chose not to join the euro. Had we joined, our economy would now be utterly wrecked, but in fact it will survive.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I thank the hon. Gentleman, who is highly knowledgeable and skilled on European matters, for making the point far better than I could. I was about to make it myself. Yes, of course schools, hospitals and the economy matter, but what also matters is our sense of nation and our independence as a member state in the European Union, not as a state in a federation. That is essential, and it is essential that we were not in the euro, for the exact reasons that he set out.

Had we been in the euro, we may well have found ourselves in the predicament that we see across the Irish sea or in southern Europe, given the reckless borrowing that took place over the previous decade, which brought our country to the brink of bankruptcy. I, for one, am glad that we did not join the euro. It is the one thing on which I congratulate the new shadow Chancellor and the former Prime Minister-preventing Tony Blair, when he was Prime Minister, from going into the euro. It was the only spark of light and quality in that Government. I am hard pushed to think of any other.

I return to the Bill, having been led astray by those gentle and generous interventions. I shall begin by focusing on clause 11. My hon. Friend Mr Clappison made a series of powerful points about the primacy of Parliament. His argument was that we cannot trust the Ministers of the day because they have their own agenda. If they do not consider a matter significant, they will certify it as not significant. Some check and balance is needed. There must be a resolution of both Houses of Parliament.

When I first thought about that, I found it attractive, but on reflection, my concern is that if the Minister considers a matter not to be significant, he will toddle down to the Whips Office and have a chat to the Parliamentary Secretary to the Treasury. He will say, "Look, chief, this isn't significant. Let's just whip this vote through the Commons, whip it through the Lords and push it through." That is what would happen.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

Is my hon. Friend seriously suggesting that he would be swayed by his Whips on such a question?

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I defer to my hon. Friend. His independence of mind and spirit is well known, and his championship of the cause of our nation in the matter of Maastricht is well recognised and on the record of the House. I would be proud if I were half as strong, resolute and bold as he is. I hope the day will come. It is, as everyone knows, a feature of the working of our political process that there will be heavy pressure in both Houses for a Government to get their agenda through.

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

There is history here, is there not? Were we not told as a nation by a former Minister for Europe, Keith Vaz, that the charter of fundamental rights had no more significance than The Beano? The charter is now incorporated in the Lisbon treaty and we are all suffering from it. A judgment call by a Minister about what is significant could turn out to be very important indeed.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I entirely agree. I remember in times past the former Prime Minister, Tony Blair, saying that the Scottish Parliament was a parish council, but it has far more sweeping powers than that. He was making a point about sovereignty and saying that it would not change anything, but a considerable amount of devolution has been given to Scotland. In the same way, the movement towards ever-closer union, which we have seen latterly in the Lisbon treaty, has highlighted the fact that although we are told, "It's okay, it's a small step, it won't make any real difference," it makes a massive difference.

I will be corrected if am wrong, but I think that about seven of every 10 of our laws are now effectively made in Europe. I have costed that and found that the European Union costs each and every household in this country an average of about £2,000 a year in taxes, which is a substantial sum. Kelvin Hopkins rightly said that our constitution and how we interrelate with Europe are important matters. If he wants to intervene on that point, I will give way.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

Mr Jenkin made light of the matter in saying that we would not obey the Whips, but surely the important point is that when the House makes a decision, we as individual MPs with individual votes that will go on the record must account to our electorates for that. It is possible that the Whips will bully, cajole, press and threaten-I have no experience of these things, of course-but our responsibility is to our electorates. In my constituency, a mini-referendum was won by those calling for a national referendum on the Lisbon treaty, and it was publicised on television and elsewhere. On something as fundamental as constitutional change relating to the European Union, the electorate do care. We are accountable to our electorates first, even though we pay lip service and tip our caps to the Whips from time to time.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I entirely agree with the hon. Gentleman. My central concern with clause 11 is that a Minister could say, "This isn't significant," and sign over some massive power. The Act of Parliament will then be whipped and rammed through both Houses. An individual, perhaps a constituent of mine in Dover, might then take issue with that because they think that it is significant. How will that constituent have a say? The Bill's current protection is judicial review, but if we had a whipped vote of both Houses and a resolution that the matter was not significant, that would weigh in the minds of the courts.

I will go further: on this matter I am a renegade among many of my hon. Friends who say that the courts have no place interfering in the business of this House. I am an old-fashioned lawyer, and I take the view that the courts are an important check and balance in our democracy. Perhaps it is just me, but in respect of our political system wishing to ram something through and take away our rights, I always thought that the purpose of the rule of law was to hold back the Executive and act as a check and balance. The purpose of the rule of law-I think this started with Magna Carta, and it has continued in legal documents written since-and the purpose of the courts is to hold back that express, overweening Executive power and ensure that the subject has their say and stands up for their rights. I do not seek to oust the jurisdiction of the courts in determining whether a significant condition has or has not been met, which I think is an important part of the Bill and an important check and balance.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

The hon. Gentleman is making a powerful case, but surely the ultimate sanction should not be with the courts, but with Parliament. Having an Act of Parliament as part of the process must be the check. He is not really describing a legal check on the Executive; he is implying that it is a legal check on Parliament, which surely rather threatens the constitutional arguments that some of his hon. Friends made last week in relation to the Bill.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

My hon. Friend makes a fair point, so let me to clarify my position. We will hopefully have an Act of Parliament that will state that there will be referendums in the case of matters that are of significance. A Minister might then come along and say that he does not think that a matter is significant. An individual will be able to go to the courts to seek a judicial review, saying that they think that the matter is significant on objective criteria. The court will then rule on that ministerial decision. That has to be right.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

What exactly will the courts do on a judicial review? Will they say that the Minister has not followed the correct process in coming to his decision, or will they try to overturn his decision? My hon. Friend is a lawyer, so I would be grateful for his explanation.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I believe that they would refer the decision back to the Minister to take into account relevant considerations, which would prevent a perversity. For example, if a Minister were to say that joining the euro was not significant, and if there were no other checks and balances in the Bill, an individual might decide that the matter was very significant and seek a judicial review. The courts would then tell the Minister that that was a perverse and an unreasonable decision.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs) 6:45 pm, 24th January 2011

Does the hon. Gentleman accept that past precedent and the vagueness of the Bill tend to indicate that it is likely that there would be no judicial review, because the issue would be defined as a political decision?

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

With respect to the hon. Gentleman, I think that that is increasingly less likely to be the case.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

In a judicial review, the courts would be concerned about any abuses of power and about whether a public body might have taken decisions that were ultra vires, meaning that they were beyond the powers of that body. The courts have recently been involved in reviewing decisions relating to the royal prerogative. As far as judicial review is concerned, the courts will not interfere with primary legislation or the decisions of this House. It seems perfectly reasonable, therefore, that the administrative courts could act as a safeguard in relation to secondary decisions, such as those taken by a Minister of the Crown on whether a matter is significant.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I completely agree with my hon.-and learned-Friend, who makes the central point. He will correct me if I am wrong, but I believe that until recently the courts shied away from reviewing the exercise of prerogative powers. These days, they are far more gung-ho in acting as a check on the decisions of the Executive. We should be under no doubt that the significance condition set out in the Bill is the decision of a Minister, meaning a decision of the Executive. As such, it is amenable to judicial review. In that way, we have the check and balance, which gets us out of the problem that concerns me: the issue of whipped votes being used to ram legislation through Parliament under some future Government. That does not apply to the current Minister, because he is a fine Minister who will use the powers correctly, but what if a future Minister has a more Euro-enthusiastic approach?

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

Perish the thought. Were such a Minister to make such a decision, my constituent would be able to challenge it and ensure that there was a more objective assessment.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I hope that the hon. Member is not suggesting that the Bill might in some way bind future Parliaments.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

The shadow Minister knows from our discussions on clause 18 that it is not possible to do that. Nevertheless, were he to become Minister in future and find the Act tiresome in holding back the floodgates of his Euro-enthusiasm and desire to embrace the greater Europe, he could dispense with the Bill by repealing it. However, he would take a political hit in doing so, because he would be taking away from the British people their right to have a say on the treaties that would follow. Therefore, he would have to be pretty forthright with the electorate in an election manifesto. If he was not, he would be open to the questions and ire of a large section of the British public who would regard that as an issue of concern.

Without further ado, it is right that I discuss new clause 9, which was tabled by the Leader of the Opposition, the shadow Foreign Secretary and the shadow Europe Minister. As far as I can see, it proposes a total watering down of everything in the Bill. I have been told by the Clerks that I am not allowed to describe it as a wrecking amendment, but I believe that I am allowed to say that it would, in my humble opinion, wreck the Bill, as far as its purpose and intent are concerned.

Photo of Richard Fuller Richard Fuller Conservative, Bedford

Does my hon. Friend agree that new clause 9 demonstrates that the Opposition have not learned the lessons from when they duped the electorate about the proposal for a referendum? In the new clause, they seek to hide the decision-making authority in a committee, but we do not know who the members would be, in what proportion they would be drawn from either House, whether all of them would be elected or whether they would be whipped. In short, it would lack the clarity that the British people want on such a decision about their future in relation to the European Union.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

My hon. Friend makes exactly the point that concerns me most. New clause 9(5) states:

"The Committee shall consist of no more than 19 Members"-

19 great and good-

"drawn from both Houses".

But would it include my hon. Friend Mr Cash, who is so learned and knowledgeable about European matters? Some future Government, operating that selection mechanism, might find that his services were not required, that he was more trouble than he was worth, and that he would talk too long-perhaps for longer than an hour in Committee-and tie up everyone. In such a manner, they might not include him. I, however, can think of no Member who knows more about the matter than he, except perhaps the hon. Member for Luton North.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I absolutely protest. Mr Cash knows infinitely more than I do.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

Shortly after my hon. Friend the Member for Stone, the hon. Gentleman is a true expert, and whenever he rises to speak I listen with interest and learn.

Would the proposed committee include, for example, Ms Stuart, who is highly knowledgeable but does not always take quite the on-message view that her pager instructs? Would it include my hon. Friend Mr Jenkin, or his constituency neighbour, my hon. Friend Mr Carswell? I can think of no more expert people to sit on such a committee, but, if the new clause were passed and the Bill changed as advertised, those people-who are so expert and know so much about matters Européenne-would not find themselves on it. I have a sense that the Front Bench teams of whoever was in power, might not include such people. For that reason, new clause 9 is a Trojan horse. Its purpose, in my humble opinion, is to take power away from the people and to stuff it upstairs in a committee; and that, in essence, is the wrong thing to do.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

Is there not another problem? Today, we have teased out of the Opposition that the new clause would effectively give the other place a veto. If the House of Lords decided that it did not want a referendum but the House of Commons decided that it did, we would have stalemate and no referendum.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

My hon. Friend makes a powerful point. The House of Lords was once a thoughtful, revising Chamber that would have orderly debates and not detain business excessively, but some of the new arrivals seem to have changed the way in which it operates. I am told that the Standing Orders and courtesies of this House prevent me going any further into all that happened in the House of Lords, but we have all read the news and seen the number of marathon sessions, and it is incumbent on some of its newer Members to think of the health of some of its older Members and to be a little more considerate than they have been of late. My hon. Friend is right about the House of Lords: whether we go further into or come out of Europe is a matter that should start in the House of Commons, because this is the House of the people.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

Is my hon. Friend struck by the fact that the Opposition appear to wish to increase the power of the unelected Chamber, as it is currently constituted, in a way that one has not seen since at least the Parliament Act 1949 and potentially the Parliament Act 1911? Through their proposed change, they seek to give the House of Lords the power, in effect, to overrule the wishes of the House of Commons.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I entirely agree. My hon. Friend makes a strong and forceful point.

I have another concern about new clause 9. My hon. Friend the Member for Harwich and North Essex, as I have said, fought valiantly for the people to have a say on the Maastricht treaty. If Maastricht were refought and the matter reconsidered, is it likely that out of the Opposition's proposed committee a referendum would come forth? Many of us have some doubts about that. My right hon. Friend the Foreign Secretary in former times made the case that the Amsterdam and Nice treaties should also have been subject to a referendum. If we had had such a committee system, would there have been a referendum? Can the shadow Europe Minister, Mr David, tell us whether there would have been a referendum if his committee system had been operational?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I do not have a retrospective crystal ball. We are looking to the future.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

We come to the vexed question of Lisbon, when the push for a referendum reached its apogee and the people felt that they were outrageously cheated. If there were a Lisbon question once again, and if the facts were the same or similar, could the new clause 9 committee be relied upon to sit and, in making a determination, to ensure that we had a referendum? If a Government had said in their election manifesto, "We will have a referendum on this matter, the committee will sit, and we will make sure that it recommends a referendum," would the committee then do so? Some people have grave doubts, because of the Whips' system, and that is why the new clause should not be the preferred way.

The Bill's measures on a referendum lock are the way forward. The amendments are all about breaking up that lock, and they would take us back to where we were with the Lisbon treaty, which was rammed through both Houses. The new clause is a concern for that reason. It would water down the referendum lock and leave us with significance tests writ large. Do we want that, or do we want to ensure that the British people have a referendum guarantee? That is very important.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

Does my hon. Friend agree-I tried to make this point earlier to Nia Griffith-that in the new clause there is an absence of any time scale for a report by the committee to the House? In itself, that significant omission would lead to more delay and obfuscation and not deal properly with the matter at hand.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

I agree strongly. That is the risk: the whole thing could be buried in committee. The new clause is also slightly defective, given that it would allow the committee to

"determine its own procedure...broadly in line with...the Joint Committees of the two Houses."

That is not sufficiently precise. I defer to those more expert in how such committees are set up, but I am concerned about the defects in the drafting of the new clause.

The Government's Bill, which the new clause seeks to amend, sets out strict and exact tests on what a referendum would be and details how it would bind Ministers in terms of the law of the land. Those provisions would not be in place if the new clause were passed. We would end up with the classic old Whips' fix, and we would not have the people's guarantee.

I believe-because I am a bit old fashioned-in government for the people, by the people and of the people, that that should not perish from this earth, and that my constituents should have a say on the great matters of our times. Given that, the Bill is important and the right step towards more public power. The people and their sovereignty should be recognised, and they should be given that say, which time and again they have been cheated of-to my mind, unacceptably.

New clause 9 would give Parliament more power; I believe in giving the people more power in our modern age. I do not agree with both Houses of Parliament having a veto on a referendum. I do not think that the House of Lords should have a veto on a referendum, particularly given the substantial concern that recent events have given us about what goes on there.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne 7:00 pm, 24th January 2011

Does my hon. Friend agree that the signal being sent by the Labour party is contemptuous of the electorate? It is trying to set up a committee that, in its good grace, will decide whether the people should have a referendum.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

Yes, I agree. The Opposition are in a fix, and new clause 9 is designed to deal with that. On the one hand, they dare not oppose the idea in principle of a referendum and of allowing the British people to be consulted. They are slightly embarrassed by the Lisbon matter. On the other hand, they do not want to come out and say it. We have what can only be described as a devious amendment to stick it all up in committee. They claim that they are all in favour of referendums, while trying to squash the rights of the British people to have a say in a referendum. That is wrong in principle, but it indicates the Opposition's lack of confidence in their position. It indicates that they do not feel that they are winning the debate on giving the British people a say.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

My hon. Friend should not be surprised by that, given that two Members on the Opposition Front Bench orchestrated the coup against Tony Blair, which put an unelected Prime Minister in place, much to the detriment of our nation.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

My hon. Friend makes a fair point.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

That is a very important question. It shows the respect that the new Government have for our democratic process, for consulting the people and for taking bold steps in the national interest-not just bringing Britain back from the brink of bankruptcy, but ensuring that the British people have a say in referendums.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby

I want to speak briefly. Charlie Elphicke might have a more sceptical view of Europe, living so close to it in Dover, but I agree generally with his views on Europe. He was sceptical about the strength of the committee proposed in new clause 9, but he would also be justified in being a little sceptical about the intentions of his Government, because the Bill is weaker than it needs to be and will not provide the strong defence that I think we need against the further aggrandisement of European power. I say as a warning: do not trust anybody in matters European.

Although I support and will vote for amendment 11, I am puzzled by new clause 9. I am not sure what it means, nor why it invokes so many decision-making processes. I do not know why it does not invoke the Mothers Union and the Privy Council as well.

As with all European debates, this debate has skirted around the main issue, which is that the Government always get their way on matters European and steamroller what they want through the House. This country has a system of government by party, in which the Executive effectively control the legislature. Party loyalty means that, whatever platform MPs are elected on-whether it is Eurosceptic, Euro-enthusiast or "don't care two stuffs about Europe"-they get dragged along by the chariot. Government by party guarantees that.

Europe has a remorseless power to drag us in. It is rather like the conversation between Brer Rabbit and the tar baby-punch it, and we are stuck. The drive to ever-closer union drags us in, because Ministers never want to rock the boat or be disruptive. They do not want to stand and fight on any particular issue. Even the courageous and esteemed Yorkshireman who holds the position of Foreign Secretary is now beginning to say nicer things about Europe in the dulcet tones of his Yorkshire accent. That is a symptom of the way in which this Government are being drawn in. Instead of making a stand on the increase in the budget by 2.9%-it will go up because there are in-built drivers that will make it rise-they accepted the remorseless rise in contributions. The cost of implementing all the regulations must now cost the country about £40 billion a year, which is as big as the cuts that the Government are trying to make.

Each party gets drawn in. Ministers do not like confrontation, so we go down the path remorselessly. I do not know who said, "Talk tough and carry a big stick", but Ministers talk tough and carry a feather duster. They come back from Europe waving the feather duster saying, "I didn't get exactly what the House of Commons or the people wanted. I had to make compromises, of course, so I went along with this. Believe me, it is only a small increase in the power of Europe. We can trust them. This will cause no problems and will be acceptable." Disastrous consequences follow. That is how Europe progresses. In this country, we always discover the extent of the disaster and the damaging consequences of the concessions long after the event. The classic example is the common fisheries policy, which was sold as an accommodation to Europe that would not be difficult or cause many problems.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby

I am not sure that I should give way to a Member who does not represent a fishing port.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

I am very grateful for the hon. Gentleman giving way, notwithstanding my not representing a fishing port. I want to know the position taken by the hon. Gentleman and his party on the idea of the referendum lock. In all his eloquent words, I have not worked out his position on that question.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby

When the hon. Gentleman has been here longer, he will appreciate that my position is not exactly the same as that of my party's Front Benchers. My position is sensible, austere and Eurosceptic, and I am anxious for the consultation of the people in any matters that involve the sacrifice of power to Europe. We should have had a referendum on the Lisbon treaty-I concede that point. I and other hon. Members argued for it strenuously at the time, but we were overruled. That was a retrograde step that made the treaty and its provisions less acceptable to this country, because the people felt that they were being imposed on them. I am in favour of referendums, and I do not think that the Bill is strong enough in that respect.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

I am grateful to the hon. Gentleman for giving way, and I do represent a fishing port. Does he agree with David Blackburn of The Spectator that the Bill

"would introduce a watertight referendum lock on future EU treaties"- perhaps salt-watertight-

"I doubt whether the Lady herself could have done much better in the circumstances"?

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby

All I can say is that David Blackburn must be more naive than I thought.

I was giving the example of the CFP, which was sold to us as harmless. We were told that it would lead to effective conservation because everybody would be involved, everybody had access to our waters and everybody would make decisions collectively. However, it led to the decimation of our fish stocks and the looting, frankly, of about £3 billion-worth of fish and jobs. There is nothing that we can do about that, because it happened under Ted Heath, who used to come down to the House in every fishing debate and justify his mistake. It is all in the past, and we discovered the problem only later. That is what happens.

My hon. Friend Nia Griffith argued that people are not interested in the details, which is certainly true. We in Grimsby are perhaps more interested than people in Wales in all matters European, particularly to do with fishing boats, but people are not interested in details. The consequences of what happens are interesting, however, because they cause the loss of jobs and employment.

There was a provision in the Lisbon treaty-was it article 121?-stating that aid could be invoked by majority vote in the event of threats to the euro from natural disasters. It has now been invoked for aid to Ireland, which will drag us into making huge contributions not only to Ireland-the Chancellor of the Exchequer projected that as a one-off-but to the other states that follow in the domino-like collapse that will happen. The consequences of concessions that are said to be of no damage, of no great moment and unimportant become clear only later. The Bill provided an opportunity to resist that process, but disappointingly, it is not strong enough.

When we consider the amendments, we should view the European situation with a certain amount of scepticism. The committee referred to in new clause 9 would be controlled by the Whips and by Government, whatever we are told about the intentions behind it. I am suspicious of proposals to modify European powers that come from Euro-enthusiasts such as my party's Front Benchers. What is in it for them? They want Europe to have its way, and the new clause is a way of allowing that while appearing to protect us.

I support amendment 11 and shall certainly vote for it if there is a vote-I hope there is, because I want to support it. However, we cannot be sure that, if the House were faced with a choice of whether to reverse a Minister's decision that an issue was not worth a referendum, it would take the decision independently. Debates such as today's give a clue as to what would happen. We happy band of Eurosceptics, including most of the Members present, have argued consistently, been right all along and warned of the consequences of what has happened. Those disastrous consequences have emerged, but nobody has said, "Oh, my God, we should have listened to the Eurosceptics on this matter." People have constantly abused us for rocking the boat and as dissenters and just a nuisance, but we are right, and we are right to fight.

However, we cannot be sure that we will win the fight. Should a matter be referred to the House under amendment 11, the House would be whipped as always and Members would see their careers relying on voting with the Government. They would think, "I shall get a powerful position even more quickly, as a Parliamentary Private Secretary to the Minister for Bathing Pools, or I shall be given a junior ministerial job in charge of seeing that library books are returned promptly"-if any libraries are left open under the Government's proposals. Ambition, love of the party and support for the party will always whip people into line. Amendment 11 would not put a roadblock in Ministers' way; it would erect another hurdle that they would be forced to jump. That would be salutary for them, because the more hurdles they jump, the more exhausted they will get and the greater the chance that we will eventually prevail.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

It is a great honour to participate in this important debate.

Members have mentioned the number of people who come into their constituency surgeries to talk about Europe. I am not overwhelmed with European issues in my surgery, but I do hear a lot of concern about Europe when I go to businesses and large organisations in my constituency. They are getting concerned about regulation, excessive interference and so on, and they think-and are sometimes right to think-that it all emanates from the European Union. It is therefore important that we give due consideration to the need to allow the electorate as a whole to speak about Europe. That is why the Bill is so important. It will, once and for all, stop the disgraceful situation of a Government promising to have a referendum on a significant change-the treaty of Lisbon-and then failing to do so. The Bill will prevent that, and quite right too.

The Bill will do a few other things as well. It will encourage a better understanding of Europe, because we will discuss it more often and engage the electorate with the issue more comprehensively. They, in turn, will learn more about Europe and our relationship with it. That will be good not just because it will deal with the incorrect assumption that the electorate will not be able to understand a referendum question, but because it will ensure that they become much more interested in what we are doing about Europe.

The same applies to the situation in Parliament. The Bill means that we will pass a lot more Acts of Parliament if and when changes are made to our relationship with Europe. Those processes, taken together, will make us less reactive to what happens in Europe and much more proactive in ensuring that Britain's interests are properly discussed, represented and promoted. The Bill will be really important for that reason.

New clause 9, tabled by the Labour Front Benchers, is a blatant attempt to look good without being good. They are attempting to suggest to everybody that they want referendums, but they are actually suggesting a deliberate mechanism to ensure that they would not necessarily need to have them. That is what it is, that is what it would do, and that is why we must not accept it.

Let us consider the discussions that we had about the treaty of Lisbon versus the Giscard d'Estaing constitution. The Labour Front Benchers attempted to say at the time, and repeated earlier today, that the treaty of Lisbon was not anything like the Giscard d'Estaing constitution. Absolute piffle-that was just not the case. The treaty was a fundamental change, and it required a proper referendum. If Labour cannot get that right, how would the committee that it suggests make any progress? How could it resolve the problems? That answer is that it could not and would not, because it would be subject to the pressures of Government, the whipping system, which my hon. Friend Charlie Elphicke mentioned, and so on. The committee would not have enough teeth, or be cohesive enough, to enforce the approach that we need when it comes to deciding whether we should have a referendum.

To make matters worse, we would be asking Parliament to decide what was substantive and what was not. That is also the problem with amendment 11, which would lead us into trouble and is also unnecessary. As I have said, Parliament will have to pass Acts if there are substantive changes, or any changes at all that affect our relationship with the European Union. New clause 9 is slightly misleading. The Opposition want to look as though they wanted referendums, but the new clause would make it possible not to have them at all, which is wrong.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham 7:15 pm, 24th January 2011

There has been some discussion about the risk of votes being whipped. Does my hon. Friend agree that there is a greater risk of a vote in Committee being whipped under the system that Labour Members propose, because the Executive can handpick the membership, than there is for a vote on the Floor of the House?

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

Yes. My hon. Friend the Member for Dover went through the possible Members who could serve on the proposed committee, obviously with a slant towards those who are participating in the debate and are interested in the European Union. The point is much the same-the committee's membership would matter. The shadow Minister has not explained how it would be formed, managed and so on. However, we can assume that whipping would take place. That is not helpful.

I am also concerned about the role that new clause 9 would give the House of Lords, given the events of the past few weeks. We need to put that down as a marker when considering how the Bill would unfold if new clause 9 were accepted.

My hon. Friend Mr Buckland is concerned about timing. He is absolutely right. He is a lawyer, and lawyers love time. [Interruption.] I have watched the clocks tick by myself. New clause 9 does not deal with that.

I tabled an amendment to get clarification on what constitutes a decision in the context of the outcome of a European Council meeting. That is important, and I hope that the Minister, when winding up, will explain what sort of decisions we should consider following a European Council or a meeting of the Council of Ministers, and when a decision is actually a decision.

We must acknowledge that the Bill will be seismically important to our relationship with Europe. It will also make a dramatic difference to the way in which the House and the Government deal with Europe in connection with the electorate. Far too often, people have found out about decisions some time afterwards. They have not felt included in that decision making, and consequently and because of their concerns, they have felt angry about the decision.

I am convinced that we will shape a much better relationship with Europe if we have the courage to explain more and to engage people more effectively. The Bill will do that without new clause 9 and other amendments that would stop us from ensuring that Parliament is the first port of call for the necessary key decisions, and that the people are always consulted when those decisions are pivotal.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I am pleased to have the opportunity to speak and I apologise to hon. Members for being unable to be present throughout the debate. I was delayed elsewhere in the House on European business.

I want strongly to support amendment 11, which Mr Clappison tabled and to which I was pleased to add my name. He made a powerful speech, which I want to echo and support.

It has been suggested that we might be governed by committees and that big decisions should be taken by a committee. I do not want a committee to make decisions about what is significant and what is not. Parliament should make those decisions, particularly this House. I am a unicameralist and therefore not so concerned about the other place. I believe that we should make the decisions in this House and be accountable to our voters because they clearly and rightly have strong feelings about the European Union.

I do not wish to be governed by judges, either. I worry about the constant reference to matters going to judicial review. I want the House, not judges, to make the decisions. As judges in the Supreme Court in America die, they are replaced by judges appointed by the President. If several judges die or retire at the same time, and a President of a particular persuasion appoints people in his own image, one has, for a generation or two, a Supreme Court that takes a particular view. Let us suppose that Tony Blair had had such a power. He would not have appointed lawyers with my views, but Euro-enthusiasts to a Supreme Court. For a generation, we would have been bogged down by a Supreme Court dominated by people who took a particular view of Europe.

Lawyers are supposed to be independent and to make balanced judgments, but one lawyer commented to me about the European arrest warrant, "Oh well, it's part of the European project, so we just say yes." We should not act in that way. We should consider matters individually, not say, "The euro's part of the European project, let's say yes to it", or, "The CAP's part of the European project, let's just nod it through." We do not do that. Britain has taken a strong position on many things that relate to the European Union, and we should continue in that way.

I agree with my hon. Friend Nia Griffith on 90% of politics, but not on Europe. Portraying Britain as the naughty boy or surly youth of Europe, who is always being difficult, is wrong. I think that we are right and they are wrong. We have taken stands on subjects such as the euro, which is now in serious trouble. We are not being anti-Europe. We take a particular view about how economies should be run. I believe that separate currencies are necessary shock absorbers for running economies.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

The Maastricht treaty was pushed through the House on the basis of our having an opt-out from the euro, and therefore that it would not affect us. Yet, even though we are not in the euro, we are deeply affected by the disaster that that treaty is inflicting on our continent.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

The hon. Gentleman is right, and I apologise for momentarily forgetting the name of his constituency-Harwich and North Essex-earlier. I agree with him. We have been right so often. When I argue about the European Union, I do not do that in nationalist or theological terms. I ask people to consider the effects on the European economy, which has grown more slowly than it would have done without the euro.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Does the hon. Gentleman agree that those who take our position-the Euro-realists-are the pro-Europeans because the people who promote the extraordinarily damaging policies create the massive unemployment, riots and protests that are happening?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

Indeed. The hon. Gentleman is right again. Many of those who protested most strongly against matters in the European Union are people of the left-trade unions, working-class people, the unemployed, minorities and so on. We should not portray a right-left divide; the debate is about democracy and what works.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Is not the lowest unemployment in the European Union in Germany? Last time I looked, it was in the eurozone. Are not the countries that are particularly vulnerable those with large structural deficits? The problem is not particularly to do with their membership of the euro.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

That is interesting. We could have a long debate about the strength of the German economy relative to other countries in Europe. One thing that Germany wanted from the European Union was to get rid of barriers to its exports, particularly to France. Germany focused its efforts over generations, from Erhard onwards, on wisely ensuring that it had a massive and strong manufacturing base. We have not done that. If we had shown more of an Erhard approach to our policies-and Erhard was no socialist, but a Christian Democrat-we might have had a stronger economy.

As part of the post-war settlement, it was important for the west that West Germany-like Japan-succeeded, so it was allowed for a long time to have an undervalued Deutschmark, which gave it a competitive edge, behind which it built massively strong industries. That is the history. If one looks at the documentation-I used to write and read a lot about such things-one will see that the German surplus was a problem even in the 1970s. It has managed to sustain that for all that time, which was wise. Had we been a bit wiser, we might not have been in quite the weak position that we are in now. Every second car driving along the road is made in Germany, but where has our motor industry gone? We still have some of it, but it is nothing like Germany's. Germany has been very clever, and I cannot blame it at all.

Anyway, we are not debating that tonight. My concern this evening is to ensure that this Committee decides what is significant when it comes to deciding whether to hold a referendum. Ministers are parts of Governments, which are always under pressure. Many Ministers are fine people, but in the end, they must go along with what the core of the Government decides. Ever since I was a student more than 40 years ago, the two things that I have criticised are secrecy and the excessive centralisation of power, particularly in the Prime Minister. I read a book when I was a student called, "The Elected Monarch", which is about the position of the British Prime Minister. We must rebalance the power of the legislature relative to the Executive, which is why the House of Commons should vote on whether a matter is significant enough for a referendum. That should not be decided by a Minister, a Committee or a series of judges.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne 7:30 pm, 24th January 2011

What does the hon. Gentleman say to the idea that even if amendment 11 were made, it would not bolster parliamentary sovereignty, because Government Whips will just whip through decisions about what is significant?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

The hon. Gentleman seems to be saying that everybody does what the Whips tell them, but that is not the case. If he looks at the history of the 13 years of Labour Government, he will find that there were rebellions-significant differences of view between certain Back Benchers and the Whips-on many serious votes, the most important of which was perhaps the Iraq war, when 139 Members, including me, voted against the Government, despite the Whips.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

The decision in favour of going to war was made with Conservative support. In the end, we are accountable not to the Whips. Clearly, we have a party system, and we are elected as party politicians, which I understand. By and large, on most things, we are guided by the Whips, but on some matters of fundamental principle, such as giving further powers to the EU or going to war, we must say, "What I believe and what I believe my electorate want is more important even than what the Whips advise." I hesitate to say that while my Front-Bench colleagues are listening, but in the end, we must occasionally take a stand.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

On the anniversary of Winston Churchill's death, will the hon. Gentleman accept what he said, which is that country comes first, constituents second and party third?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

We must take all those things into account when we make our decisions, but we make those decisions and stand by them, which I like to think I have done. I have regretted one or two things, but the hon. Gentleman is right. In defence of two-party Government-or our party system-I do not believe that we are elected as individual anarchists. We are here to represent a philosophy and interests in society. I am not by nature an anarchist; I am a collective democrat. That is where I stand.

The most important aspect of amendment 11, which is in the name of the hon. Member for Hertsmere, is that it would have an impact on the EU, which Neil Carmichael mentioned. If the EU wants to push something through that it suspects will be unpopular in this Parliament, it might not proceed if the provision in the amendment were in force, whereas if it thinks it must win over only the Minister, the Prime Minister or the Executive, it might think it will get away with it. If it knows that its proposals are likely to go to a referendum and that their significance will be voted on by the House, it will be a little more careful.

That impact on the EU is more significant than giving decisions to ourselves because we like to make decisions. The EU will be much more careful about its proposals if it thinks that they might be subject to a referendum in Britain, because it knows very well that the justifiably strong degree of Euroscepticism will come to the fore, that there could be a problem, and that it might not win. If the EU thinks that there is a chance of not winning a referendum, it will not risk it. A referendum is much more likely to be risked if a decision is made in this House rather than by the Minister. That is the way of things.

Finally, I want to draw a parallel. I mentioned the excessive centralisation of power in British politics, particular in No. 10 Downing street, the Prime Minister and his little entourage, but the other thing that is wrong is secrecy. I was a strong supporter of the Freedom of Information Act 2000. When it was going through Parliament, the Government proposed an amendment to the effect that we could have freedom of information except when the Minister says no. My good friend Tony Wright, the former Member for Cannock Chase and Chair of the Select Committee on Public Administration, led a rebellion. We did not win, but we made our point. He was very much a politician of the moderate left who would go along, by and large, with the leadership-he was not as critical as I was. He was an architect of that Act, and quite strongly in favour of it, but he was quite shocked when that qualification was proposed. Ministers are fine people who do a great job, but in the end, this House must make serious decisions about things, not just Ministers. I very much hope that the hon. Member for Hertsmere presses amendment 11 to a Division, and I certainly wish to vote for it.

Photo of Nicholas Boles Nicholas Boles Conservative, Grantham and Stamford

I should like to share with hon. Members why I think the Bill is the most significant thing that the Government will do in this Parliament. The House knows that I am a strong, enthusiastic supporter of the Government. I cheerfully look forward to voting for the Localism Bill, the education Bill, the Health and Social Care Bill, and many others that we will debate in next few years, but I do not exaggerate it when I say that this is most significant thing that we will do, because it is the "Thus far and no further" Bill.

Hon. Members on both sides of the Committee have said that this Bill will start a debate on Europe in the country, but they are wrong. The country has had its debate on Europe. It made up its mind a very long time ago, and said, "Thus far and no further." Unfortunately, Parliament and previous Governments did not listen to the country and did not understand that that is the country's decision. They tried to continue to try to evade the will of the people by ratifying treaties of which the people wanted nothing.

The Bill is the Bill that says, "We have finally listened. We finally understand, and we will not put through any treaty, or any change or shift in sovereignty and power, that you, the people, do not want." That is why I believe -only somewhat mischievously-that the Bill should be viewed as a tribute to the indefatigable efforts of my hon. Friend Mr Cash, who sadly is no longer in his place. Although he and I disagree on many things-I will go on to say why I disagree with his amendments-it is clear that his achievement in the Bill is greater than the achievement of almost any Back Bencher I can remember, and probably greater than almost any Minister any of us can remember. For nearly 30 years, he has led the campaign to say, "Thus far and no further!" Tonight and on future nights when we debate the Bill, he will get his way, and he will have given to the British people what they want and what he has always wanted to give them-the right to say, "Thus far and no further!" Were he not quite so hale and hearty and not quite so obviously going to survive and outlive me-he will still be here long after I leave this place-I would even go so far as to suggest that the Bill be called the William Cash memorial Bill.

Having made that case, I want to say why I believe that the Opposition amendments are damaging in so many ways. Their amendment 85 is a poison pill-a poison pill coated in the sweet chocolate of parliamentary sovereignty and power, but a poison pill nevertheless. By moving the amendment, they are trying to seduce the great defenders of parliamentary sovereignty on the Government Benches into creating the possibility for them in the future to undo and reverse the effects of the Bill. They know that if they refer a decision to this committee of theirs, there is a chance-they cannot absolutely be certain who will be on it or how it will vote-that they can control it, whereas they know for a fact that there is no chance of controlling the British people. That is why their amendment is pernicious and insidious. That shows the view the Labour party has of the views of the British people on this great issue. It is that approach that informed its entirely insincere promise of a referendum on the European constitution-happily just before an election-and the attitude that led it to scuttle around, to persuade its European partners to take out a couple of things, to rename it a "treaty" and then to declare that there would be no referendum after all.

Government Members, as well as Opposition Members such as Kelvin Hopkins, who is so brave and forthright on this issue, should not be fooled by the amendment. I know that we are not allowed to call amendments "wrecking" amendments, but this amendment surely is designed to undermine the entire purpose of the Bill.

Photo of James Wharton James Wharton Conservative, Stockton South

Does my hon. Friend agree that it is exactly this sort of parliamentary fancy footwork that has undermined the public's trust in this place to deal with European matters?

Photo of Nicholas Boles Nicholas Boles Conservative, Grantham and Stamford

I agree wholeheartedly with my hon. Friend. Indeed, one of the most important things about the Bill-this has been eloquently addressed by my hon. Friend Charlie Elphicke and others-is that it is an important step in rebuilding the trust of the people in Parliament to do, broadly speaking, what the people want, especially on great questions of independence and the constitution. It is vital that we do this. That is why it is so important that the Bill sets out in such painstaking detail exactly which changes will lead to a referendum. Frankly, we cannot ask people to trust us on this anymore. We, as a class-not just a party-cannot ask people to take our word for it when we say that there will be a referendum on anything. If they are to believe us, we need to put it into law, take it through both Houses of Parliament and make it very difficult to go back on.

That leads me neatly to the amendments tabled by my hon. Friend the Member for Stone. He believes that they would make yet firmer the protection of the people's right to a referendum on European changes. I fear that in his enthusiasm for this cause of his, which has lasted so long, and in his commitment to the fight for our country's independence, he is in danger of not being able to take yes for an answer. Finally, he has the Bill that he wanted so much, but he is suspicious of every little compromise and every little attempt to make it workable. I fear that his amendments will actually make the Bill much, much weaker and much less likely to survive. By suggesting that there be no exemptions to the requirement for a referendum, he is suggesting that we end up paralysing the European Union for all its members.

I can understand the appeal of that to some of us-some of us might want to get our own back on this project for all the iniquities that it has inflicted on us-but would that not produce a diplomatic crisis that would lead to monumental pressure on future Governments, including perhaps a Labour Government, to amend, or even repeal, the Bill? A number of Members have talked about seeking to bind the hands of our successors-but we all seek to bind the hands of our successors. Every Act of Parliament seeks to bind the hands of our successors; it is just that, fortunately, we cannot insist on it. We try to do it by making legislation part of the settlement, the culture and habit of this place and our country. We are trying, therefore, to bind the hands of our successors with the Bill, but if we manacle ourselves to something unreasonable, we will make it easier for a plausible future leader of the Labour party to stand up and say, "This Bill is ruining our relations and undermining our trade with Europe, and it has to go." We must not give them that opportunity.

That is why I hope very much that my colleagues, who like me are rejoicing in the fact that we are finally listening to the British people, will reject the amendments tabled by the Opposition Front-Bench team and my hon. Friend the Member for Stone, and vote for this magnificent Bill.

Photo of George Eustice George Eustice Conservative, Camborne and Redruth 7:45 pm, 24th January 2011

I have been a long-standing supporter of referendums and the role that they can play in strengthening our democracy. My first role in politics was campaigning for the Referendum party, way back in 1997, in favour of a referendum on the euro. The reason why I think that referendums really can work is that they bring some brutal common sense from the British public to complicated debates. They are also cross-party campaigns. I remember campaigning against the euro-it is great to see the hon. Members for Luton North (Kelvin Hopkins) and for Great Grimsby (Austin Mitchell) in their places-and that was a cross-party campaign. That can be incredibly important for our democracy. It is good for the public to see politicians from different parties working together on issues where they have a shared conviction, rather than simply campaigning across party lines. For that reason, referendums can be incredibly important.

It is also important to note that referendums are about issues rather than personalities. We hear a lot of people complain these days about personality politics and the presidential nature of certain elections where it is all about the tie or the suit that the politician is wearing, rather than the issues that they stand for. Referendums cut right through that. They are about the issue, and people focus on that issue rather than on politicians. For all those reasons, I think that referendums have an incredibly important role to play in strengthening our democracy, and I welcome this step forward.

I listened intently to Opposition Members' contributions about their new clause 9. I was struck by the comment from Nia Griffith that there was referendum fatigue. Well, the last referendum we had on Europe was in 1975, when I was about four years old, so there is hardly fatigue with European referendums. In fact, the situation is completely the reverse. The opinion polls were clear: the public wanted to have their say on the Lisbon treaty, the euro, the constitution and all the major treaties that went through, but they were denied that say.

I take issue with Mr David, who claimed that the EU is well down people's list of priorities and that we should therefore not have a referendum on EU issues, because what really motivates people are issues such as education and the economy. He is absolutely right that the EU is very low down the list of things influencing people's voting intentions in a general election: polls show that it is around 12th or 14th in people's lists of priorities. However, that is exactly why we must have referendums on such constitutionally important issues. People do not hold Governments to account on such issues at the ballot box, because there are bigger issues at the forefront of their minds. However, as the hon. Member for Luton North made clear, that does not mean that such issues are unimportant. They are vital constitutional issues that have a knock-on effect on a range of policies. The only way to get public discussion and engagement with European issues is through a referendum. We would then get a discussion that simply would not happen in a general election.

A lot has been said about the problem of binding future Parliaments, and about how having such referendums would be unconstitutional. However, that misses a crucial point. The fact is that ever since the European Communities Act 1972, Parliaments have indeed been bound. There has been an open door for encroachment by the EU into the UK's legal system. That is why we need to rebalance the position. We need a bulwark against the 1972 Act and those Acts that followed it. We need something that will act as a break. I do not think that what is proposed would weaken Parliament; rather, it would strengthen it, bringing it much closer to the people whom Parliament should represent and dealing with the problem caused by the 1972 Act.

I also disagree with those who say that people do not understand or that the public are too ignorant to deal with such issues. There is no evidence of that. If we had a referendum on such issues, both campaigns would need to distil the arguments down into a clear set of messages, but sometimes that is what is needed.

Photo of Claire Perry Claire Perry Conservative, Devizes

Like my hon. Friend, I listened to the opening speeches from both sides of the Committee. Was he struck, like I was, by the fact that Labour is not only the party of deficit denial, but the party of referendum refuseniks?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

Yes, my hon. Friend is absolutely right.

Photo of John Spellar John Spellar Shadow Minister (Foreign and Commonwealth Affairs)

Will the hon. Gentleman remind us which party has given the country a referendum on the European Union?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

I give credit to the Labour Government of some 35 years ago for giving us that one and only referendum.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

I was there, and I recall campaigning for a no vote and voting accordingly in the referendum. Although Mr Spellar is quite right that the then Labour Government offered us a referendum, they then campaigned against. No Bill is perfect, but the reality is this: whichever treaties we may have signed up to, each and every one would have been caught by the provisions of this Bill, thereby generating a referendum. That is a powerful procedure to put in place for the future.

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

I am grateful to my hon. Friend for raising that issue, and I completely agree with him. I know that some on the Government Benches are concerned that the Bill does not go far enough and that there may be ways for future Governments to circumvent its provisions. However, as someone who has been a staunch Eurosceptic for 13 years, I have to say that we have waited a long time for such legislation. I believe that the Bill offers an incredibly strong lock, which will apply to any transfers of power. Indeed, clause 4 gives a list of no less than 13 circumstances in which a referendum would automatically be triggered. It is important that people recognise that and, on this side of the Committee, realise that the glass is not half-empty; rather, in my view, it is almost full to the brim. Of course there are areas where one might say the Bill could be improved, but it is fundamentally an incredibly good Bill that we should be getting behind.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I think that the Bill is a load of hogwash, but be that as it may, does the hon. Gentleman think that if Turkey is to accede to the European Union-in which case there would have to be an accession treaty, which would have to go through its processes in the UK-there should be a referendum in Britain?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

No, I personally do not agree with that, and there is a good reason why. What the Bill should aim to do is prevent the handing over of power from this country to the European Union. I want sovereignty for this Parliament; I do not want this Parliament to interfere in the decisions of other countries. However, once we start saying that we should have a veto on the accession of countries such as Turkey, we start to get into that territory.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

How would a referendum on accession be an interference in, let us say, the governance of Turkey?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

Because rather than allowing such countries to join-and we have already expanded the number of countries in the European Union-we would then be saying that every country should have a veto on future accessions. I do not think that that is right. Let me also just say that Turkey is a moderate, Muslim country, and a great example of a successful secular democracy, which we should be supporting and encouraging, rather than sending signals that suggest that we are against accession.

As I have said, I have campaigned for referendums for a long time. In my time campaigning against European integration, it is fair to say that I have seen a lot of referendums promised and then subsequently taken away.

Photo of Geraint Davies Geraint Davies Parliamentary Assembly of the Council of Europe (Substitute Member)

I am interested that the hon. Gentleman would not agree to a referendum on Turkey, which is a simple proposition for the British public. Would he have agreed with a referendum on, for example, the establishment of the European Systemic Risk Board or the European Securities and Markets Authority, or on authorities affecting occupational pensions and so on? Those changes have created pervasive powers across Europe over our financial systems, so they are important. Is he saying that he would have referendums on those authorities, which are quite complicated to understand, but not on whether Turkey is in or out?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

It depends: if there was an extension of competences, then yes, of course.

Coming back to the areas where those now on the Opposition Benches have promised referendums, we have to look at what drives first the promise of a referendum and then the withdrawal of that promise. Back in 1997, the only reason this country was promised a referendum on the euro was that the Referendum party stood for election, posing a threat to the then Conservative Government and the Labour party. For that reason, both parties promised a referendum. As it turned out, that promise was the only thing that kept this country out of the euro. What did we have after 1997, in the first few years of the Labour Government? We had years and years of speculation about whether there would be a referendum. I can remember working on the anti-euro campaign and looking at what the media were saying. There were dozens and dozens of stories-we added them up-that opened with the line, "In the strongest signal yet that Britain is going to join the euro, Tony Blair has signalled that a referendum is just round the corner." Let us remember all the acres of coverage and the huge sum of money that was spent analysing those five so-called tests, when all along they were simply a political fig leaf.

Then we had the European constitution. A referendum on it was promised, but for no other reason than the political interests of the Labour party. Labour was concerned about the threat to its position in the 2004 Euro-elections, and for that reason-that is, simply for tactical, self-interested reasons-promised a referendum out of the blue. Having got those elections out of the way and having won in 2005, Labour then withdrew the offer of a referendum on the EU constitution and the Lisbon treaty. We were then subjected to a further couple of years of endless talk about Tony Blair's red lines and what the Government were doing to protect the national interest, with endless speeches trying to explain why the Lisbon treaty was not the same as the EU constitution, when to all intents and purposes it was. Throughout all that, the decision on whether to hold a referendum on those issues was dictated by political interest and calculation, and we need to move on from that.

Countries such as Ireland have done this much better than we have. How sad it is that, all too often, we have had to rely on the people of the Irish Republic to stand up for the interests of European people. Why have we not been able to hold referendums as automatically as they have been held in Ireland?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs) 8:00 pm, 24th January 2011

I would like to put a pretty fundamental question to the hon. Gentleman. If a Government were to say, "There will not be a referendum during this Parliament, because we will not introduce any measures that would trigger one," what would be the point of this legislation?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

I am not sure that I understand the hon. Gentleman's point. If any major transfer of power from the UK Parliament to the EU were proposed, a referendum would automatically be triggered.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

I certainly understand the thrust of the argument. Is it not the case that any future treaty revision will be constrained by the understanding that there would be a referendum in the United Kingdom that it would be impossible to win? Would not that, in itself, exert a powerful discipline on the development of the European Union, in that it would need to either curtail its ambition or, more importantly, make an accommodation with the British people and the British Government that was more in line with what we thought we had joined in 1975?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

My hon. Friend makes a valid point. Having this legislation in place will change the nature of the pressure on the Government and influence their negotiating position.

I want to talk about the concerns that have been expressed about the "significance" clause. I recognise the argument of those who suspect that it might give Governments a way out, so that they could backslide away from a promise to hold a referendum in certain circumstances. I do not buy into that idea, however. I agree with what Martin Howe, QC, a distinguished Eurosceptic, has said on this. He has spent years studying these issues. If we want to make this legislation durable, and if we want it to last more than five years and to become an established convention, we need to ensure that there are no excuses that a future Government of a different party might be able to use to repeal it. There is a presumption that holding lots of referendums on very small, insignificant issues would give our opponents an excuse to repeal it, and we really cannot accept that.

Photo of Geraint Davies Geraint Davies Parliamentary Assembly of the Council of Europe (Substitute Member)

Does the hon. Gentleman think that there should be a limit on the number of referendums held over a particular period, given that they could result in a certain weariness among the electorate, as well as incurring a certain cost? Does he also think that referendums should be binding if they do not achieve a certain turnout of the electorate?

Photo of George Eustice George Eustice Conservative, Camborne and Redruth

If there were fatigue because we were holding too many referendums, that would mean that we had been attempting to pass too much power to the European Union. I hope that the requirement to gain public consent for handing any such powers to the European Union will dissuade Governments from recklessly throwing away the power of this House.

There is a lot to commend amendment 11, and I have listened with great interest to the debates on it today. It is far superior to new clause 9, in that it does not attempt to water down the pledge; it provides it with an extra belt and braces. It would apply only when a Minister judged that a change was not significant. When such a judgment was made, Members of Parliament would have to support it. That proposal has a lot going for it. It would strengthen the presumption in favour of holding referendums. For all those reasons, I am quite attracted to the amendment.

I listened carefully to what my hon. Friend Jacob Rees-Mogg said earlier about the fact that the proposal might make it less easy to have a judicial review. He suggested that a motion in the House might undermine the chances of a judicial review. That was a valid point. I was not convinced, however, by the argument that a better way to deliver this would be to table an amendment to the Act of Parliament that would be required in relation to the referendum. We all know what happens to the majority of amendments that are tabled in the House. We have only to look at the amendments tabled to this Bill to understand that. The immediacy of the proposed motion, linked to a statement by a Minister, has a lot going for it. Having said that, I also understand the counter-arguments regarding judicial review.

The Bill does exactly what Eurosceptics have wanted for a very long time, and we should stand behind it all the way. I completely reject new clause 9, because it is an almost weasely way of getting round the purpose of the Bill. It would significantly water it down, taking power away from the voters and giving it to politicians. The idea that some committee of 19 people should be the arbiter of these matters rather than having an automatic trigger for a referendum is absolutely crazy. I completely reject the new clause, but I believe that amendment 11 has a lot going for it.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

I welcome the Bill. I embrace it with open arms; I actually cherish it. It goes further than any other piece of legislation to check the further encroachment of European power and hegemony into the United Kingdom. It ought therefore to be embraced as the landmark Bill that it actually is. Many people in Britain feel disconnected from how the European Union has developed and the decisions that have been taken in their name over the past few decades. Someone would now have to be in their 50s to have had the opportunity to vote on a European Union issue in the United Kingdom. It is time that a check was made on the ever-increasing and ever-encroaching power of the European Union, and this Bill does that in a way that has never been done before by any Government of any hue in this country.

The Bill gives people more control over the decisions that Governments have tended to make. It also provides for a referendum lock over future powers. People in this country are tired of the European Union telling us that we must have straight bananas or not use imperial measurements. Ironically, it is the European Union that has been imperious in its outlook for some considerable time. I recognise the Bill as a measure that will, at last, provide a check to that ever-encroaching power, and I welcome it with open arms.

The Bill requires the consent of the British people, through a referendum, for any proposed treaty change. It goes further, however. It is not just about treaty changes in the big sense. So-called mini-treaty changes would also require the people's consent, and even bridging clauses would activate the referendum requirement. It is a substantial and sizeable measure, and I agree with the point made earlier that my hon. Friend Mr Cash can claim considerable credit over many years for standing up for the British parliamentary sovereignty that we cherish so much. I congratulate him on that.

Photo of Geraint Davies Geraint Davies Parliamentary Assembly of the Council of Europe (Substitute Member)

The hon. Gentleman mentioned parliamentary sovereignty, but does he agree that the Bill is tantamount to an abdication of parliamentary sovereignty? Instead of taking the decision here to veto a change in Europe, we are simply passing the ball to the general public, who might find some of the complexities-the hon. Gentleman mentioned the sort of nuanced changes that can be made to treaties-difficult. To be fair, people come to this House with a knowledge and focus on these issues and what we are doing is throwing away that sovereignty. An Irish referendum might end up being decided on the issues surrounding abortion, for example, which had nothing to do with the case in point. It is absurd.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

It is extraordinary-although not surprising from Labour Members-to hear that the general public should not be consulted on these matters. This Parliament derives its authority from the public, which Labour Members would do well to mention.

Photo of Geraint Davies Geraint Davies Parliamentary Assembly of the Council of Europe (Substitute Member)

It would follow, then, that we should have a referendum on every Bill we pass and every decision we take. The hon. Gentleman's position is absurd and untenable.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

This Bill is about checking the European Union in its encroachment of sovereign powers. It is not a routine measure, such as the ones the hon. Gentleman mentions. It is not an abrogation of the rights of this Parliament to give the people a referendum to prevent further encroachment of sovereign powers.

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

My hon. Friend is making the point-Geraint Davies seems not to have absorbed it-that on the issue of European politics, the House of Commons, our Parliament, is simply not trusted. Time and again, as my hon. Friend George Eustice pointed out, we promised referendums, but failed to deliver them. In this specific case, it is quite right to have a referendum lock on any further treaties. This is not an argument for having referendums in general, but a specific point about our relations with Europe and the capacity of this country's people to make their views felt. I think that the public generally feel that the House and the political class as a whole have been bad at listening to them. The idea that we are abrogating responsibility through this referendum is foolish. What we are trying to do is to re-engage with the public.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

My hon. Friend is quite correct: this is not an abrogation, but a reaffirmation of people power. In enacting the Bill, this Parliament, which represents the people, will give the public the rights for which they have been screaming for so long over further EU encroachment.

Photo of Claire Perry Claire Perry Conservative, Devizes

Does my hon. Friend agree that Geraint Davies, in representing 50% of the Labour Back-Bench Members who have bothered to show up for this debate, perhaps demonstrates the disdain with which the Labour party regards the Bill and Parliament, proving once again that Labour Members do not believe in listening to the people on such crucial matters as our constitution? I would prefer to see referendums on many more issues, including abortion, which was mentioned by the hon. Gentleman. We should not be scared of the voice of the people in the way that the Labour party so clearly is.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

My hon. Friend is quite right; I entirely endorse what she says.

Photo of Geraint Davies Geraint Davies Parliamentary Assembly of the Council of Europe (Substitute Member)

I am very grateful to the hon. Gentleman for generously giving way again, but I must correct the record here. I am completely in favour, for example, of the March referendum in Wales on the extension of legislative powers to the Welsh Assembly, and I am in favour of having referendums on other devolution issues. I am not against referendums in themselves; what I am against is having endless referendums on every little change in Europe. People in Parliament are more empowered and more informed to be able to take those decisions. That is why I view it as an abdication of sovereignty.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

The hon. Gentleman should read the Bill; it is not about every little change, but "significant" changes. The reality is, as hon. Members demonstrated earlier, that the general public have, sadly, lost faith and confidence in this institution on the issue of Europe. They had been led to believe-by no less than the Labour Government in respect of the Lisbon treaty-that they would be given a say prior to the Bill, but they were not given the referendum they were promised. In fact, it is clear that the promise made was insincere. That has gone some way towards alienating the general public from the legislative assembly of this country. Now we need to satisfy the general public that they will have a say in any further encroachment of EU power.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs) 8:15 pm, 24th January 2011

The hon. Gentleman said earlier that the Bill was about giving this country's people a voice on significant changes. I have already tried to ask the Front-Bench team, but the Minister would not respond, so let me try again to ask about the Government's rationale for deliberately excluding one of the most important changes that will affect the European Union and Britain-the accession to and possible membership of the EU by Turkey. Why is that excluded?

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

With great respect to the hon. Gentleman, a new country-whether it be Turkey or any other-joining the EU does not mean that more decisions will be shifted to the EU. Nor does a new country joining the EU mean the giving up of vetoes. That is the difference. Conservative Members have always supported the widening of the EU, and a wider EU has changed it for the better by bringing in free-market allies such as the Czech Republic. I hope and expect Turkey to join, and I would encourage it to do so.

Photo of Sarah Newton Sarah Newton Conservative, Truro and Falmouth

Does my hon. Friend agree that in the event of Turkey joining the EU, we-unlike Labour Members-can exercise the transitional arrangements. If there are concerns about a great deal of people coming into this country, we can put limits in place, as indeed our colleagues have done in other European countries. That is something that Labour Members abysmally failed to do when they were in government.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

That is absolutely right. Conservative Members have learned lessons from previous enlargements and we will not allow full free movement of workers from all new members, carte blanche, as soon as they join. We should require, it seems to me, complete fulfilment of all the membership criteria, particularly on criminal justice enforcement, for example. Labour messed up on that previously and this country suffered.

I respectfully submit that there has previously been a fundamental lack of understanding of sovereignty issues in this country. One example I would venture to provide is Labour's creation of the Supreme Court. The very name is a misnomer, I submit, because in this country the law is not as it is in the United States where the American Supreme Court in Washington DC is empowered to say that the Government's legislation is unlawful and to strike it down. The US Supreme Court can overrule Congress, but in this country Parliament is sovereign. Labour thus showed a fundamental misunderstanding of the British constitution when it called the institution that took over from the House of Lords judicial committee "the Supreme Court". The law in this country is not supreme; Parliament is supreme and Parliament gives the law its authority, not vice-versa, unlike under the American system.

That brings me to clause 18, which is crucial and reaffirms that Parliament has ultimate sovereignty over European law.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I take issue with my hon. Friend on that, simply because we had a significant debate on it and the European Scrutiny Committee took a completely contrary view.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

I was not present for that, so I shall forbear making further reference to the matter.

The Labour amendments to the Bill are nonsensical. They seek to take away power from the people, and even from the House. They seek to empower a committee, and it was Winston Churchill, I think, who said that wars are not won by committee, and nor would this type of legislation be won over by committee. With great respect to the Whips, such a proposal would involve them having greater sway, over how a committee might be constituted and what might result from it. The public need to be satisfied, and a referendum will at last satisfy them that they will have a say. Labour's suggestion of involving a committee is erroneous and on the wrong track entirely.

I am also anxious that other amendments do not weaken the Bill. Amendments tabled by my hon. Friends might have the opposite effect from that which is intended. By creating too strong a test as to what is substantial, and requiring a referendum on almost any issue, we might bring European Union institutions to a standstill-[Hon. Members: "Hear, hear."] That might be the wish of hon. Members, and I respect that, but I do not agree with it, as it is not the way forward. Subsequent Governments-not Her Majesty's Government as currently constituted, who would never buckle under such pressure-might be put under disproportionate pressure from other member states of the European Union to alter and interfere with the Bill once it is on the statute book. With respect to hon. Friends who take such a view, that might indirectly have an effect of weakening the Bill and leading to diplomatic crises.

On the significance test, Labour seeks to have a significance test on everything, which would not work. I was fascinated by one Labour amendment suggestion to give greater power to the other place. I venture to suggest that it is 100 years since the House of Lords has had greater authority than the House of Commons, yet the Labour party proposal of a veto on a referendum is tantamount to giving the unelected House of Lords, illustrious and greatly respected though it is, a right over and above that of the House of Commons. That would be an entirely unhealthy position. The Labour party does not dare oppose the principle of the Bill, as it knows it will have the support of the vast majority of members of the public, but nor does it want to accept it, as it wants to oppose for the sake of opposition.

The Bill sets out 44 vetoes, 12 decisions and eight different ways of increasing the European Union's competences, and there will not be a significance test on any of those. One would hope that that would have the effect of placating those on the Government side of the House who are concerned about the significance test.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Does the hon. Gentleman not accept that it would have been far better if the Government had adhered to the Conservative party's election manifesto and begun to repatriate legislation?

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

I am afraid that that is not relevant to the Bill.

Matthew d'Ancona has said:

"Imperfect though it may be, the bill is a dramatic punctuation mark in the history of Britain's relationship with the European Union."

Opposition Members ought to accept that. They ought to acknowledge that the Bill is a ground-breaking, landmark piece of legislation which will do that which has not been done in this country for decades, and give the general public the rights that they so obviously desire in relation to the European Union and further expansion of its powers.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Thank you for calling me, Mr Brady. It is a pleasure to serve under your chairmanship for, I believe, the first time.

Let me begin by saying, as a Liberal Democrat, that my perspective on Europe is subtly different from that of some of my Conservative colleagues. However, I am at one with them in believing that the debate is crucially important, and that it goes to the heart of our democracy at both United Kingdom and European Union level. I think it important for these issues to be debated.

It is a matter of some pride to me that most of the robust intellectual debate seems to have taken place on the coalition Benches, although there have been some quality interjections from Opposition Members, most of whom are not present now. Partly for that reason, I think that amendment 11 is unnecessary. Every treaty change suggested in the Bill will be subject to debate and vote in the House. As was pointed out by Jacob Rees-Mogg, who is no longer in the Chamber, an Act of Parliament is the ultimate constitutional lock. It is unlikely that the Whips could somehow force through such proposals, especially given what has been said today. One of the healthy features of the coalition-I say this with the most deferential respect to my very good and right hon. Friend Mr Carmichael-is that the Whips do not seem to have quite such a stranglehold on debates and votes as they did in the last Parliament, of which I was a Member-

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

I see no signs of Mr Cash giving way to the Whips on anything. Meanwhile, I happily give way to him.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Leaving that aside, let me suggest that, according to the sequence of events provided for by the excellent amendment tabled by my hon. Friend Mr Clappison, the question of the Minister's motion and its approval by Parliament will arise before Third Reading, and almost certainly before Report. For practical purposes, therefore, the House of Commons will have decided the question. Surely the hon. Gentleman is not honestly suggesting that, its approval having been required, Parliament would vote against the proposal on Third Reading. Surely that would not make sense.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

I do not quite follow the hon. Gentleman's argument. I suspect that the Minister's decision would almost certainly precede even First Reading. Following the introduction of a Bill and after the Minister had decided whether the proposed change was significant, it would be up to Parliament to amend the Bill and call a referendum if by any chance it considered that necessary. As has already been pointed out, this Parliament cannot bind its successors.

In view of the time, I intend to concentrate on the amendments tabled in my name, but I also want to say a little about the Labour amendments. Mr David said, rather harshly in my view, that the coalition was displaying-I think that I am quoting him correctly-weak-kneed, ill-thought-out populism. May I indulge in a gentle return of serve? The Labour party seems to have tried to find some reasons to oppose a Bill that it obviously wishes it had thought of first, come up with a number of reasons that appear to be mutually contradictory, and settled on the grand solution of a committee that it cannot explain.

I think that if anyone is guilty of ill-thought-out populism, it may be Labour Members. As has been eloquently pointed out by Neil Carmichael, Chris Heaton-Harris and many others, Labour's proposed committee would make things less transparent and less democratic. A real habit of the previous Labour Government was removing powers from primary legislation and handing them to committees, to commissions and even to Ministers. These things were not coming back to this place to be voted on; they were often disappearing altogether.

Photo of Geraint Davies Geraint Davies Parliamentary Assembly of the Council of Europe (Substitute Member) 8:30 pm, 24th January 2011

Does the hon. Gentleman accept that if the number of referendums available in this Bill were available to every country in the EU, the EU would grind to a standstill-the situation would be completely ridiculous? How can he be an honourable Liberal Democrat and support that?

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

The hon. Gentleman might want to listen to the rest of my speech, because there is some risk of what he describes, and that is the thrust behind our amendments.

Amendments 67 and 68 may look drastic to some of our Conservative colleagues, because they seem to remove a swathe of the referendum provisions from the Bill. However, they seek to tease out the rationale for the referendum lock in the case of amendments to the treaty on the functioning of the European Union using the simplified revision procedure. The amendments do not relate to referendums on changes to the treaty on European Union or even to referendums on changes to the treaty on the functioning of the European Union that do not use the SRP. So the amendments do not seek to remove referendums altogether from this Bill; they ask whether referendums on treaty changes under article 48(6) of the treaty on European Union-the simplified revision procedure-which, after all, was created for relatively uncontentious and insignificant changes in the functioning of the European Union, are really justified.

As a small aside, may I ask the Minister to explain why "transfer" of power or competence "to" the EU is used in the explanatory notes and in some of the language associated with the Bill, rather than "pooling" or "sharing" powers and competences "with" the European Union, which has been the established language until now? To those of us who are fairly relaxed about pooling sovereignty and powers with the European Union when it is right to do so, "transfer" sounds a slightly more pejorative term and its use an example of linguistic drift.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

The use of the language is important, because the rhetoric has changed and the Opposition contend that the substance has not.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

That stretches credibility somewhat. The hon. Gentleman has heard in many eloquent speeches from Members on the Government Benches how important the Bill is to our relationship with the European Union and how it offers the possibility of reconnecting the British public with the decision-making processes in the European Union. It is beyond doubt that the Bill will be a significant piece of legislation.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

The hon. Gentleman asked the Minister why the Bill's language is about the "transfer" of competences, rather than the "pooling" or "sharing" of competences, which has been the language used previously. I put it him-the Minister might not put it this way-that the notion of "pooling" or "sharing" competences does not fully explain what has been happening over the years and that those are weasel words. A competence "shared" is, in fact, a competence transferred and a competence fully transferred is not even shared. The correct word to use is "transferred" and I give the Minister credit for doing that.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

The hon. Gentleman makes a powerful response on behalf of the Minister, but I would say that "transfer" implies a total handing over, not just a partial one, of some UK sovereign powers, as if the European Union were some kind of imperial entity of which this country is a humble subject. That may be what some Conservative Members fear but, as I hope the Minister will confirm, the reality is that the vast majority of powers and competences in the European Union are not exclusive EU competences, but competences shared with member states or merely competences to support inter-state co-operation. We have only to consider an issue such as the environment and climate change to realise that we cannot really transfer competence over that to the European Union alone, because such an arrangement simply would not work.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I am glad that the hon. Gentleman referred to "exclusive" competences. Surely if the EU has gained an exclusive competence, a transfer certainly has taken place. A competence shared with the European Union usually results in European Union legislation. Once the European Union has legislated, it has occupied that policy-that part of the field of legal competence-and the doctrine of the European Court is that the EU cannot give that back; the policy can only then be delegated back to the member state. So "transferred" is a good word to have in the Bill.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

I disagree with the hon. Gentleman's perspective. He speaks as if the European Union were somewhere else, but we are part of the European Union. Even the hon. Gentleman is a member of the European Union.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Whether the hon. Gentleman likes it or not, as regards formal influence we are one of the four largest member states in the Council and in the European Parliament. In informal terms, we have done remarkably well in supplying civil servants, not least in the new External Action Service, and we have hundreds if not thousands of British citizens working in one way or another within the European Union structures. We do not hand over powers or competences and then have no say on them. On the contrary, as one of the largest member states we have a leading role in the EU. It includes us-and that includes Mr Jenkin and all his hon. Friends. It is not an alien or a foreign body invading our body politic, but a union of all the peoples and nations of Europe.

You will be able to tell, Mr Brady, that I am less convinced of the need for onerous checks and balances than some of my colleagues, but I would like to say that I am cautiously supportive of the overall direction of the Bill. There is little secret that Liberal Democrats alone would probably not have thought it absolutely necessary, but we recognise its importance to Conservative colleagues. Without doubt there is a disconnect between the British public and the decisions made in their name regarding the part that Britain plays in the European Union.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Does what the hon. Gentleman just said bear out what we heard from Lord Mandelson, which is that even at the last minute, after the coalition had been to all intents and purposes stitched up, the hon. Gentleman's leader, the Deputy Prime Minister, was still on the phone to Mr Brown to ask whether he could achieve any further manoeuvring in relation to the European Union?

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

My suspicion is that that is very unlikely to be true, but I suggest that the hon. Gentleman consult Lord Mandelson's memoirs to find the authoritative account.

There is no doubt that there is a real disconnect between the British public and the decisions made at a European level and an even bigger disconnect between British parliamentary and political life and the workings of the European Union. I am a long-standing pro-European and I have been supportive of many of the important and necessary treaty changes that we have seen in the post-war era. Even as a pro-European, however, I must reflect on the fact that that process has left something of a rift-a democratic deficit-between the British public and the European Union. I hope that many of the provisions for new democratic safeguards and checks on the power of the Executive over major decisions on future UK/EU relations in this Bill will go some way towards filling that void.

It is also worth reflecting on the fact that the Bill's direction is complementary to many of the innovations in the Lisbon treaty. That is important as regards amendments 67 and 68. The UK is not alone in the Union in recognising that the pace of EU integration has left a dangerous lack of understanding and a disconnection between EU institutions, national Parliaments and European citizens. In fact, I think that was recognised by all EU member states in the Council, by members of the Commission and by Members of the European Parliament long before the Bill was conceived. That concern was translated into quite concrete measures in the Lisbon treaty.

I welcomed those changes in the Lisbon treaty and I guess it is too early to tell how well they will work, but the direction in which the Union is moving is clear. That might render unnecessary the calling of a referendum in all the cases envisaged by the Bill, hence amendments 67 and 68. The Lisbon treaty innovations, which were obscured in the haze of media and Europhobic hysteria about the treaty, should be seen as the foundations on which this Bill is being built. Let me remind the House about some of those innovations, which dovetail closely with the provisions in the Bill and necessitate a certain restraint in calling a referendum on everything that moves-a restraint that we have tried to articulate in amendments 67 and 68.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Is the hon. Gentleman aware-I am sure that he is, and perhaps on reflection he might like to retract those remarks in light of the fact that he is sitting in such close proximity to the Minister for Europe-that the same Europhobic utterances to which he is referring were reflected by the entire Conservative party, in unity, opposing every aspect of the Lisbon treaty and insisting on a referendum? I know that his hon. Friends were not doing so; this so-called temporary alliance looks as though it has quite a few splits in it.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

What we have is not a temporary alliance with splits in it, but a business arrangement between two parties with very different traditions and very different views on Europe. The refreshing thing about the coalition, in contrast to Labour when it was in government and there were accusations of psychological disturbance and all sorts of things going on behind the scenes, is that we at least can be open and honest about our different traditions and perspectives. It is to the credit of the coalition and of the Minister that we have managed to create a Bill that largely satisfies both sides.

Photo of Claire Perry Claire Perry Conservative, Devizes

Will my hon. Friend therefore take his argument one step further and recognise that although we may have political differences within the coalition, and there are certainly differences across the Floor, the point of a referendum is that it is not for us to have a conversation endlessly into the night about what we care about? It is about trusting the people and listening to the voices of the people, which is a tradition that both Conservatives and Liberals share.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Indeed. That was well put and brings us back to the subject of the Bill and the amendments, which is probably just as well.

I remind the Committee again of some of the provisions of the Lisbon treaty that dovetail with the Bill, and which should give us pause for thought about whether referendums are necessary in all the cases set out in the Bill. Do we need such a hair trigger for referendums when there is the forthcoming European citizens initiative provided for in the Lisbon treaty, which will allow a petition of 1 million European citizens from across the member states to trigger a legislative proposal from the Commission? That is a unique, ground-breaking innovation expressly designed to develop connections between European citizens and the apparently remote EU institutions.

Do we need a referendum at the drop of a hat, or even of a beret, when the Lisbon treaty has created the new yellow and orange card system, which enables one third of national Parliaments-in Britain, this would be done through the scrutiny Committees-to object to an EU proposal if they feel it breaches the principle of subsidiarity? That will require the Commission to reconsider the proposal or force the Council and European Parliament to come to a decision on whether to scrap the proposal or amend it. Do we need to provide for so many referendums, when the new emergency break clauses in the treaties provide national Parliaments and member states with far greater powers than ever before to block a proposal if they consider it to breach or contravene a fundamental component of their domestic legal framework?

Because it is so pertinent to the amendments, I should be interested to know the Minister's view of how well that new yellow and orange card system is being applied by our own Parliament's scrutiny Committees. Such innovations could reassure people and remove the need for a referendum on the slightest technical change. Is the Minister aware of any efforts by those Committees to create their own connections with parallel committees or bodies in other European states, or any system of co-ordination with the national Parliaments in the other 27 member states with regard to the orange and yellow card system? That would start to give effect to the proposals in the Lisbon treaty.

Although I welcome the complementary nature of the Bill to the Lisbon treaty changes that seek to reconnect the public and Parliament, perhaps we can go further. That does not have to be in the form of endless referendums. Let me make a few concrete suggestions. Why not hold an extended annual debate on the Floor of the House on the Commission's work programme, as we do on our own Queen's Speech? That would seem to be an obvious and welcome opportunity for Parliament to debate the relative pros and cons of forthcoming proposals, and to offer suggestions to the Government of measures that the UK should seek to add to the Commission's agenda or even delete from it.

Why not ask Ministers who are going to attend European Council meetings to give oral evidence in advance to their respective Select Committees? That would seem a logical way to engage both MPs and Ministers with the major issues under discussion at EU level in their respective portfolio areas. Is not that a better way to deal with the many issues that will inevitably arise, some of them highly technical, rather than prompting a succession of referendums?

Finally, what about establishing portfolio-specific EU sub-Committees, such as those in the House of Lords, which we could do by adapting the remit of existing Select Committees? Will the Minister take those ideas into account and perhaps provide an initial response on their appropriateness in improving parliamentary scrutiny of, and engagement with, European matters?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 8:45 pm, 24th January 2011

As Chair of the European Scrutiny Committee, I know that it is universally accepted on both sides of the House, as has already been expressed by the Minister and the shadow Minister, that the quality of analysis that we have given to clause 18 and those proposals has been excellent, and that view has been endorsed by many outside Parliament. I mention that simply because the hon. Gentleman is perhaps moving into territory that he might later regret.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

I do not always agree with the hon. Gentleman, particularly on matters European, but I pay due credit to his Committee and its work. The level of scrutiny that Parliament now gives European matters is certainly on the increase, which is a healthy trend. I give due respect to him for that.

Amendments 67 and 68 would remove the requirement to hold a referendum on any treaty change under the simplified revision procedure that would pool or transfer power or competence from the UK level to the European level. They would not remove the new requirement for Parliament to ratify every treaty change through an Act of Parliament, so Parliament would have the opportunity to put back the requirement for a referendum if that was felt to be absolutely necessary.

The new procedure that the amendments would create for the UK to support and ratify a treaty change made under the SRP that had already been voted for in unanimity at European Council level would simply be for the Minister to lay a statement setting out what the treaty change was and for the Government then to bring forward primary legislation, which would have to be passed by Parliament. That would not touch the requirement for a referendum to ratify any major new treaty under the ordinary revision procedure.

As I have said, even the Act of Parliament under the SRP could ultimately include a referendum in a particular case. In tabling the amendments, the issue we are raising is whether it is advisable to use referendums on any-I stress "any"-transfer or sharing of power or competence with the EU. The provisions for a referendum lock set out in clauses 3 and 4 seem to cover more or less any future change by the SRP, regardless of its size, content, purpose, necessity, or indeed whether it is in the UK's national interest.

I appreciate that the obvious counter to that train of thought is that if there is a good case to be made for a future treaty change, the Government and Parliament of the day should be able to make that to the British public, and I accept that there is a strong case for that on major questions. That case is perhaps made more strongly by Conservative Members than by Liberal Democrats, but I recognise that it is an important one. It might even include some issues such as EU membership for countries such as Turkey. My concern is whether referendums are the best way to approach any future change, even if it is only technical and insignificant.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

One area of competence that the EU currently acts in but does not have defined is combating climate change. Does my hon. Friend agree that saying that we need a referendum when that activity becomes defined is a stretch too far?

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

That is a good example of how a completely uncontroversial and essentially technical change might nevertheless, if we are not careful, trigger a referendum. Like Claire Perry, I am an enthusiast for referendums in general and voted for one on the Lisbon treaty and for an in/out referendum at the same time, but those are undoubtedly significant changes.

The House of Lords Constitution Committee has noted more recently that there are some risks and costs associated with referendums. We have held just nine referendums since 1973, although only one has been UK-wide. The Committee conducted an in-depth inquiry on referendums in the UK last year, concluding:

"The balance of the evidence that we have heard leads us to the conclusion that there are significant drawbacks to the use of referendums".

I do not sense any implied rejection of referendums per se, but there are arguments for using them with restraint and ensuring that they are limited to major issues.

Some of the drawbacks cited in the Committee's report include, first, that referendums can undermine representative democracy-not a point that I necessarily agree with, but one that some Opposition Members have made; secondly, that referendums are costly-unarguably an important point in the current austere environment; thirdly, that voters show little desire to participate in them; fourthly, that referendums tend not to be about the issue in question-very likely with some of the technical issues in this case; fifthly, that referendums fail to deal with complex issues; sixthly, that referendums never "settle" the issue-despite expectations; and seventhly, that referendums are a "conservative device" or a block on progress. As a result, the Lords Committee concludes that referendums should be used on questions only of "fundamental constitutional change". Some examples given are, rather alarmingly, referendums to abolish the monarchy, to change the electoral system for the House of Commons and to change the UK's system of currency.

I have to ask the Minister whether including all SRP changes under the referendum lock in the Bill is in keeping with the Lords Committee's detailed findings on the use of referendums. Given the current "treaty fatigue" throughout the European Union, SRP is highly likely to be the most common form of treaty change for the foreseeable future. It is highly likely also that future treaty changes will be relatively small and targeted affairs designed to tweak existing treaties rather than to rewrite them substantially. Is it not therefore highly likely that the referendum lock in clause 3 will capture highly specific, arguably complex, limited and uncontroversial treaty changes?

Such changes might, nevertheless, be urgent. For example, in 2007 my constituency was badly flooded, as was much of Gloucestershire, and we benefited significantly from European emergency funds. If, during any future emergency in a part of Europe which technically fell outside the fund's scope, a treaty amendment were technically required, it would surely be uncontroversial and, in fact, very urgent, so would we seriously say to whichever stricken part of Europe was affected, "Fine, we'll send aid from the European emergency funds, but we'll just have to hold a referendum on it first"? That would be inconceivable. My example may be hypothetical, but it is not impossible to conceive of equally uncontroversial and desirable things that the referendum proposal might block completely.

Given the conclusions of the Lords Committee's report on referendums, can the Minister reassure me that the provisions in clauses 3 and 4 will not produce a plethora of complex and costly referendums that exasperate the public, frustrate proper decision-making at European level and are highly vulnerable to hijack by questions that are completely different from those on the ballot paper? Does he agree that the most appropriate democratic check on the use of article 48(6) is primary legislation, as it would give Parliament alone, as the representative of the people, the power to ratify those limited, specific and complex treaty changes that are likely to come under the use of that article?

On the complexity of the referendums that the Bill could produce, can the Minister provide the House with some examples of referendum questions that the referendum lock on SRP treaty changes might create? It is quite difficult to conceive of one so significant that it would justify the use of a national referendum. Can the Minister provide the House with an estimate either of the number of referendums that the Bill is likely to produce in the foreseeable future, or, if that means looking too far into the crystal ball, of the number of SRP changes that are currently in discussion at the European Council or expected to be in the near future? Most significantly in these austere times, can he indicate the expected cost of each referendum on current projections?

The Minister will be aware that the purpose of creating the SRP under the Lisbon treaty was to avoid the need for long drawn-out intergovernmental conferences and painful ratification processes in instances where EU member states wished to undertake targeted and limited treaty changes, particularly uncontentious improvements or enhancements to the workings of the EU for the benefit of all member states. I therefore have concerns over the inflexibility of the referendum lock, and what it will mean in practice. Will the Minister reassure me that the threat or fear of losing a referendum on a treaty change will not prevent future Governments from supporting even uncontroversial and popular changes, and changes that are in the UK's national interest?

I point out to the Committee that on many occasions in the history of the UK's membership of the European Union, it has been deemed in the UK's interest to further pool powers and competence in the European Union. The most obvious example, which should be close to Conservative hearts, is the Single European Act, which was a massive shift away from unanimity voting and towards dropping national vetoes. The European Union was able to dramatically accelerate integration across the internal market-the basic economic rationale that I thought was shared across the coalition Benches. The forward-thinking move to pool and share powers and competence has been of huge economic benefit to the UK and the European Union as a whole. Can the Minister not think of potential instances in the future when further pooling of powers and sovereignty would be dramatically to the UK's benefit?

In the light of the time and the desire for other Members to take part, I will cut short my planned remarks. In asking the Minister to consider amendments 67 and 68, I suggest that there is a risk of the Bill triggering, on a hair trigger, referendums on every conceivable issue. Liberal Democrat Members, who perhaps do not share some of the fears of those on the Conservative Benches, need considerable reassurance on that issue.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I am most grateful to be speaking under your chairmanship, Mr Brady. I will endeavour to be briefer than some hon. Members have been this afternoon.

We are discussing the trigger for a referendum in the Bill. It is worth pointing out the undercurrent in this debate: some people are speaking because they do not think that there have been enough referendums and others are speaking because they do not want referendums. The official Opposition have got into a bit of trouble with their amendment. My right hon. Friend Mr Dorrell had some fun at their expense, because they tried to present a set of amendments as pro-referendum when their record on referendums is rather lamentable-perhaps as lamentable as ours when we have been in government.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I will not give way, because my point was not designed to provoke the Opposition and I want to press on. The Opposition's inability to answer the question of how the proposals would help to get a referendum meant that they fell into the trap that was set for them by my right hon. Friend the Member for Charnwood.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

Did not the Opposition spokesman's responses give the game away that Labour is unwilling and resistant to the idea of promoting referendums in the context of the Bill? The purpose of both coalition parties is to open the door to consulting the people on the decisions envisaged in the Bill.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I agree totally, but perhaps my right hon. Friend was a little unwise to draw more attention to himself. Perhaps he will speak later and give way generously, as the Opposition spokesman did to him. I have a few points to put to him about how enthusiastic he is about a referendum, given that he voted against the referendum on the Maastricht treaty and at that stage even opposed the principle of a referendum on the single currency. Who would take that position today?

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

Given that it is unlikely that I shall have the opportunity to address the Committee and respond to all my hon. Friend's questions, perhaps we shall have to defer that pleasure for another day. However, I invite him to consider the benefits of a sinner who repents.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I am all for that. I remember my noble Friend, the former Member for North Shropshire, Lord Biffen-he who had whipped through and proposed the guillotine on the Single European Act-starting his speech in a debate on the Maastricht treaty by exclaiming that we all have blood on our hands. The important theme to draw from this debate is that there is unanimity about the democratic deficit at the heart of the whole process of European integration. The people have not been involved or consulted enough.

My hon. Friend Nick Boles extolled the virtues of the Bill as the "Thus far and no further" Bill and the great victory for my hon. Friend Mr Cash, who has campaigned on the matter for so many years-the Bill Cash memorial Bill. My hon. Friend seemed to be saying that the Bill would succeed in stopping the process of European integration in its tracks, even though the much-quoted Martin Howe, QC, has said that although the Bill might fix our place on the escalator, it does not stop the escalator going up.

My hon. Friend the Member for Grantham and Stamford extolled the Bill's virtues not because there would be referendums, but because it would prevent European integration because nobody would want a referendum. My hon. Friend George Eustice, however, did so because he thought it would cause referendums, and he lamented the fact that there had not been one since 1975. We all know why the Bill is in being-it is because there ain't been a referendum, and every time a major decision is discussed in Europe, the public cannot understand why they have not been consulted about the dramatic changes that are taking place.

We are continuing to feed the expectation that something in the Bill will trigger a referendum, but I do not believe that the Government have any intention of allowing a referendum to be triggered. Indeed, my right hon. Friend the Minister has said that he has no intention of there being a referendum in this Parliament. The Bill will go on to the statute book and then a future Administration-perhaps a Conservative one, perhaps another coalition one or perhaps a Labour one-will not be bound by it.

This I will grant my hon. Friend the Member for Camborne and Redruth: the Bill creates more of an expectation that somehow the situation will change. However, we are in danger of over-selling the Bill if we think it will create a lock. It will not. Let us listen to the words of Lord Leach of Fairford, who is the chairman of Open Europe, no less, which champions the issue and for which my hon. Friend worked. He has said that

"as it stands the EU Bill has some loopholes which urgently need to be plugged if it is to withstand the steady mission creep of new EU laws and accretion of powers."

What we are debating today is whether we can plug some of those loopholes. I am afraid that the whole conception of the Bill has been deconstructed in today's debate.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 9:00 pm, 24th January 2011

Amendment 1 would deal with the exemption condition, which in turn would deal with that mission creep, the accession issue and the question of mixed treaties.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I will deal briefly with my hon. Friend's amendments, which deserve consideration and which I will support if there is a vote. The original pledge was that any new treaty would get a referendum-that was what we were told at the Conservative party conference in 2009. That was going to be the real referendum lock. It seems that the proximity of office blunts the senses, and "any treaty" is now only "certain treaties".

We are now faced with a treaty of enormous significance in the EU-the treaty for fiscal union that Monsieur Fillon came over to propose to the Prime Minister last week. We will be told that it will not affect us, because there is no transfer of competence, no change in voting rights, no imposition of obligations and all the rest, and that it is not significant, so there is no need for a referendum. I remember being told that we could ratify the Maastricht treaty because it did not really affect us as we would have an opt-out from monetary union, but look how it is affecting us. There is no such thing as "Does not affect us". Of course, if we were not in the European Union and it went ahead with fiscal union, it would affect us, so it will be argued that we cannot object as long as we have proper opt-outs.

The problem is that we are in the EU and under the European Court of Justice. We are in the decision-making institutions and in the legal jurisdiction of what will become a fiscal union. It is impossible for anyone to argue that the development of the European Union can go ahead to such an extent without affecting legal decisions in this country. Yet the Bill excludes any possibility of a referendum on an extremely significant treaty. That provision should have been in the Maastricht treaty-we all argued that for that when monetary union was first discussed. We all pointed out that the no-bail-out clause was worth nothing-article 104c is emblazoned on my heart. We all argued that there could not be monetary union without fiscal union. We warned of the consequences of monetary union without fiscal union, and stressed that our opt-out was meaningless and would not protect us from the consequences of the Maastricht treaty. Now we are warning again that we should not allow the treaty to go ahead unless we get sufficient opt-outs and exemptions from the existing acquis communautaire, yet the Bill does not provide for a referendum.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

My hon. Friend asserted once or twice from a sedentary position during the debate that it had strayed quite widely in the context of the amendments. It is not clear to me how the French Prime Minister's proposal for a treaty for fiscal union falls within the scope of the amendments that we are discussing.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

Amendment 1 would remove wriggle room for any Government by requiring a referendum on any new treaty. That was promised at the Conservative party conference, but it is not being delivered in the Bill.

I reiterate that if we want to protect ourselves from the consequences of the inclusion of fiscal union in the arrangements for the European Union, we need to separate ourselves considerably from all the other paraphernalia in which we are currently embroiled. Even the Liberal Democrats are beginning to talk about repatriation of powers on some labour market regulations, such as the working time directive. Incidentally, we were told that we had opted out of that, but it turned out that we had not-something else that we were right about when we debated the Maastricht treaty.

If we allow fiscal union to go ahead, it is inconceivable that it will not have an impact on taxation throughout the European Union. Taxation is already a shared competence. It is not difficult for the European Court of Justice to argue that, as tax union takes place in the euro area, in order to maintain a single marketplace and a level playing field-and all the jargon that is regularly used-it will enlarge the EU's competences over taxation. That is inevitable. I am fed up of warning about what will happen and being proved right. It is time that the House acted on the warnings that it has been given for many years.

I want to consider amendment 11 and the test for significance. The amendment is in keeping with the spirit of the Bill. Its scope is narrow. Clause 2 covers "Treaties amending or replacing" the existing treaties. Clause 3 deals with amending the treaty on the functioning of the European Union. Each relies on clause 4, which provides for a whole lot of tests, including subsection (1)(i) and (j), which are subject to the significance test.

The problem with the significance test was best described by the European Scrutiny Committee. I appreciate that many of my colleagues say, "Oh well, that's chaired by the hon. Member for Stone. What do you expect? It's been completely hijacked by the ultra Eurosceptic extremists." However, I invite hon. Members to consider the membership of that Committee. Its members are a pretty reasonable bunch of people. I happen to believe that my hon. Friend the Member for Stone is a reasonable person, too. Although some of the report was contested, paragraph 98 was supported unanimously by Labour and Liberal Democrat as well as Conservative members of the Committee. Paragraph 98 states, in bold:

"We think the possibility for successful judicial review of a ministerial decision whether a transfer of power under clause 4(1)(i) and (j) is significant will, in practice, be limited."

That is based on evidence given to that Committee. The problem is:

"The expressions 'if the Minister is of the opinion' and 'in the Minister's opinion' in clause 4(4) underline the subjectivity of the process and the difficulty of judicial review."

My hon. Friend Charlie Elphicke said that somehow Mr and Mrs Citizen from Dover can toddle into the administrative court to bring an action that threatens the whole Government's policy when the Minister has opined to the House of Commons that something is not significant enough to attract a referendum. That is absolutely bonkers. My noble Friend Lord Rees-Mogg and Mr Stuart Wheeler are hardly two typical citizens-perhaps they are my hon. Friend's constituents-but they have both failed to attract the attention of the courts or to engage them in such fundamentally political decisions. The phrase

"in the Minister's opinion" clearly makes the decision political. It is a political problem. The skill of amendment 11, which stands in the name of my hon. Friend Mr Clappison, is that it brings decisions home to the House of Commons, where political decisions should be made.

The main argument against amendment 11 is that judicial review is superior to the Government's obtaining the consent of the House of Commons. We do not like rule by judges or judicial supremacy. We prefer democracy, which commends the proposal. The second argument against amendment 11 is even more bizarre.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Surely the hon. Gentleman will concede that under the Bill, every treaty change will be subject to a vote in Parliament, because an Act of Parliament will be required for every single treaty change, whether there is a referendum or not.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I thank the hon. Gentleman for that, because it is the only other argument against amendment 11. He is saying, "You don't need to bring a decision to the House of Commons, because you can't get a treaty change without an Act of Parliament and the whole issue can be dealt with then." However, that is an argument against clauses 2, 3 and 4. What is the point of the Bill? The point of the Bill is to bring matters to Parliament or to the people for decision before we legislate to enact a new treaty change. If the Government and the Committee do not accept amendment 11, which would transfer a decision from the courts to the House of Commons, why are we bothering with the Bill at all? The hon. Gentleman makes an argument against the Bill.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

My hon. Friend will recall that we did not get a referendum on the Lisbon treaty because the House decided that we would not have one. I am entirely with him, and I much prefer in principle for decisions to be made by the House of Commons rather than the courts, but frankly, in that previous case, I have no doubt that the courts would have granted us a referendum when the House denied us one.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I should point out that the only reason why we are not having a referendum on the Lisbon treaty is that the Government decided to persuade their supporters not to have one. My hon. Friend is exactly right that the House of Commons decided not to have a referendum. In the next Parliament, however, the House could decide to repeal the Bill when it is an Act of Parliament. It could decide to overturn a Minister's decision, or it could accept a Minister's decision, introduce a Bill to ratify a new part of the treaty, give all sorts of reasons why there should not be a referendum and put that into the Bill. The Bill is no guarantee of a referendum. It creates an expectation that there should be referendums, but that is all it does-it generates a political expectation.

Photo of Claire Perry Claire Perry Conservative, Devizes 9:15 pm, 24th January 2011

I feel like I am putting a toe into a pool full of big fish who have been debating these issues for years, so I hope that my hon. Friend will be gentle with me in his reply. Does the Bill go any way towards making him feel better about the future of the Eurosceptic majority in this country? Is he 10% more comfortable? Is he 20% more comfortable? I believe that this is a very big step in the right direction within the constraints of the coalition and the legal situation that we have inherited. Is it 20%? Is it 50%? Surely he is sleeping a little bit easier at night as a result of the Bill being brought to the House.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

Of course. I stood on the same platform as my hon. Friend at the last election of wanting a referendum lock and a sovereignty Bill, but I fear that the way the Bill is being enacted will disappoint our constituents.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I agree that it is better, if only because it generates an expectation and a moment that will come in our history when people say, "Up with this we will not put! We are having a referendum." To that extent, it is useful background noise, but I do not put it better than that. It is not fulfilling what we promised before the last general election.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I am sure that my hon. Friend will accept that the real problem is the European Union as it now is. We are not having a referendum on any aspect of the mess that Europe is in. Everybody in the Committee has to accept that the riots, the protests and the collapse of the euro-all these things-are the consequence of the failure of European economic governance that has been predicted from Maastricht onwards. The Bill will do nothing to change that because it does not provide for a referendum on the circumstances that we are now in.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I am grateful to my hon. Friend.

I hear the plea of my hon. Friend Claire Perry, but I believe that there is a constant danger of us succumbing to wishful thinking. The problem is that this is not the "thus far and no further" Bill; it is the "locking the stable door after the horse has bolted" Bill. What is more, whatever other horses there may be in the stable, there are sufficient holes in the door for those horses to squeeze through, if it is convenient for the Executive to allow it to happen. That is what we will see with the treaty coming down the track for EU fiscal union. The Bill will not increase the happiness of the British people about our present terms of EU membership. The Bill fails to address those terms, but they will have to be addressed at some stage in the future.

I refuse to sign a referendum pledge, as I was recently asked to do, saying, "Let's have an in-or-out referendum". That is not the way to conduct this debate; the way to conduct it is for the Government to lay down their national interests and negotiate robustly for them in the European Union, rather than to continue appeasing the system to avoid a row. I even accept that we may need to do that for a period, while we are in such a difficult fiscal position, but the moment that the EU is asking for treaty changes for which it needs our consent is the moment we should be asking for concessions in return. We certainly should not carry on transferring competencies to the EU without a referendum, as is provided for in the Bill.

Photo of David Lidington David Lidington The Minister for Europe

We have had a robust debate, and I want to start by thanking all right hon. and hon. Members on both sides of the Committee who have taken part, whether through speeches or the numerous interventions.

I want to start with a point on which there was agreement, certainly on the Government Benches. Wherever people stand within the coalition or the spectrum of opinion on Europe in the Conservative party alone, there is agreement that the European Union has developed with too little democratic control and without adequate consent being given by the British people. Indeed, the Lisbon treaty was the first time that the United Kingdom agreed to, and then ratified, a European Union treaty that was not even included in the general election manifesto of the winning party at the previous election.

My hon. Friends the Members for Daventry (Chris Heaton-Harris), for Grantham and Stamford (Nick Boles) and for Camborne and Redruth (George Eustice) said that we needed to change what the history of the British political world's handling of European business had done, which is to undermine support for our membership of the European Union and the idea that what British Ministers do in European Union institutions on behalf of the United Kingdom carries democratic consent. We need to restore a sense of confidence among the public in how British Ministers take decisions on Europe on their behalf, and that is what the Bill seeks to do. We want to ensure that the British people are never again denied their say over the transfer of new competences and powers from this country to the institutions of the European Union.

I should say in parenthesis to my hon. Friend Martin Horwood that although the word "transfer" in the explanatory notes is a reasonable use of layman's language, I am sure that he will have noted that in the Bill itself we use the term "confer". We talk about exclusive, shared, co-ordinating and supplementing competences, which are precisely the terms used in the European treaties.

However, my hon. Friend was right to say that this Bill should not be our only means of addressing the democratic deficit in the way that European decisions are made. He was right to talk about the importance of strengthening our systems of parliamentary scrutiny. I am looking forward to seeing how the scrutiny Committees in the House of Commons and the House of Lords use the opportunities presented by the new yellow and orange-card system. I know that my hon. Friend Mr Cash has been in regular contact with his counterpart committees in a number of other EU capitals. It is important that that network of contacts between the European Union scrutiny committees in each of the 27 member states continues to develop.

I am sure that my hon. Friend the Member for Cheltenham will also have seen the written ministerial statement that I made to the House last Thursday. Although it dealt primarily with issues concerning justice and home affairs measures, it also stated that the Government now wanted to explore-together with Parliament, and therefore with the two scrutiny Committees in particular-ways in which, right across the piece, we can strengthen scrutiny and accountability to the Houses of Parliament for what we as a Government do in Europe on behalf of this country.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I very much acknowledge the sentiment that my right hon. Friend is expressing, but I am sure that he will understand when I say that listening is not the same as actually agreeing, and that there are circumstances where I would have expected him to be a little more acquiescent in relation to some of the arguments that we have put forward.

Photo of David Lidington David Lidington The Minister for Europe

In those conversations about parliamentary scrutiny, which I intend should begin as soon as possible, I hope that I can find complete agreement with my hon. Friend. However, he will know that if we are talking about arrangements that will govern how both Houses of Parliament deal with European business and the process of scrutiny, we ought to be striving towards a measure that can command broad support in both Houses, and across all the political parties represented therein.

The Bill is a radical piece of legislation to improve how we handle European business. As my hon. Friend Mr Swayne pointed out, in a characteristically vigorous intervention, had the legislation been in force at the time, the treaties of Lisbon, Amsterdam, Nice and Maastricht would all have required a referendum before they could have been finally ratified.

The powers in the Bill include a referendum lock on treaty changes or decisions that transfer powers from the United Kingdom to the European Union. That is the case even if the measures used to transfer those competences or powers are the extensive self-amending provisions introduced by the treaty of Lisbon. The powers include requiring that important decisions-even if they do not transfer power or competence-are still in every case approved by an Act of Parliament. I want to put this beyond any doubt: the Bill will mean that any treaty change at all, whether using the ordinary procedure for amending a treaty or the simplified revision procedure, will have to be approved by primary legislation.

This is a vitally needed improvement. Under the European Union (Amendment) Act 2008, Parliament's control over the simplified revision procedure and other key ratchets is limited to a vote on a Government motion. That is the case even if the simplified treaty changes or ratchet clauses are proposed to abolish something as important as a national veto over foreign policy.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

There is something that I genuinely do not understand after reading through the notes. When the Government list all the things that will be covered by the ratchet clauses, is that an exhaustive list? What is the logic behind the list?

Photo of David Lidington David Lidington The Minister for Europe

We shall have a debate on the ratchet clauses later this week when we deal with amendments to those parts of the Bill. I will be happy to go into more detail then, and I hope the hon. Lady will forgive me if I do not answer her question now.

We are giving Parliament and the public the opportunity to hold Ministers to account by spelling out the criteria needed to make a decision on whether the power or competence is transferred, and requiring Ministers to make a statement giving the reasons for their decision. Parliament can challenge this, and, if it so wishes during the legislative process, add further conditions of its own. If the public are dissatisfied with the Minister's judgment-I stress it will be the Minister's judgment, not Parliament's-they will be able to use judicial review to check it further.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

Would a member of the public be allowed legal aid for such a challenge?

Photo of David Lidington David Lidington The Minister for Europe

My hon. Friend is tempting me to go way beyond the scope of the Bill. At the moment, any legal aid application would be subject to the normal rules that apply to legal aid, which are the responsibility of the Ministry of Justice, and not of the Foreign and Commonwealth Office.

The Bill comprehensively goes through the nuts and bolts of the treaties to identify how power and competence could be shifted from this country to the European Union. We have deliberately and determinedly taken steps to limit the wriggle room for any Government or Minister in this regard. We are committed to ensuring, as best we can, that the Bill is watertight, with no omissions or loopholes that would allow a future Government to avoid giving either Parliament or the people the control that they deserve.

Let me spell out in a little more detail how we plan to achieve this. Following the agreement of any future treaty change under the ordinary revision procedure-that is, the process involving an intergovernmental conference and, probably, since the Lisbon treaty, a convention of the European and national Parliaments as well as of national Governments-three conditions must be fulfilled before the United Kingdom could ratify such a treaty change. First, the Minister must lay a statement before Parliament. That statement would give the Minister's decision as to whether the proposed treaty change would involve one or more of the criteria in clause 4 of the Bill, and therefore whether a referendum would be required or not. A change that would transfer power or competence from this country to the EU would be subject to a referendum of the British people.

If the proposal were considered by the Minister not to involve one or more of the criteria in clause 4, it would be considered to meet the exemption condition-in other words, it would not require a referendum to be held. The important point is this: the Minister cannot simply conjure his decision out of the air. He has to obey the law. He has to follow the criteria set out in the Bill, especially those in clause 4 and schedule 1. His statement will have to demonstrate how he has applied those criteria in coming to his decision. He will simply not have the scope in law to make some arbitrary decision in defiance of what is spelled out in the legislation.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I hear what the Minister is saying, but his points are deliberately vague. How does he respond to that?

Photo of David Lidington David Lidington The Minister for Europe

The points are not vague. I invite the hon. Gentleman to have another look at clause 4 and schedule 1, both of which define in clear terms the various ways in which competences could, within the terms set out in the treaties, be enlarged, transferred or expanded, while schedule 1 sets out in detail a list of national vetoes, the removal of which would automatically trigger a referendum. I gently suggest that the hon. Gentleman studies the Bill a little bit harder.

The second condition is that Parliament's approval has to be gained for the treaty change in all cases, no matter how minor or uncontroversial, by Act of Parliament. That legislation would provide for the approval of the treaty change and, where a referendum is required, provide the necessary enabling measures to allow it to be held. The need for an Act of Parliament is central to our role in holding Ministers to account for the decisions they take on behalf of the UK in the EU. If Parliament were of the view that a referendum should be required for a future treaty change, despite that proposal coming in one of the exempt categories, it could amend the approval legislation to provide for a referendum if it so wished.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 9:30 pm, 24th January 2011

Does the Minister not accept that it would be a monumental change if proposals relating to fiscal union, social union or employment union were to be incorporated in a treaty between the UK and other member states-excluding the UK, but none the less having a juggernaut impact upon us? In those circumstances, is that material not so important that we would expect to get a referendum-as would the British people?

Photo of David Lidington David Lidington The Minister for Europe

My hon. Friend is jumping several bridges in assuming that what might be proposed in those hypothetical circumstances would be an amendment of the European Union treaties rather than a separate intergovernmental treaty involving the member countries of the eurozone-and perhaps some others-who wished to participate in the sort of closer economic union that my hon. Friend described and fears.

I hope to say more about this later, but the Bill is based on a very clear principle agreed within the coalition -that the referendum lock should apply where there is a transfer of competence or of power from the United Kingdom to the institutions of the European Union. That is the defining criterion. The different categories of exemption apply where powers and competences are not being transferred from this country. That is the reason for the distinction set out in the Bill. It is not an arbitrary decision, but one based on a very clear principle.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

I am still trying to understand what the Minister regards as significant. The monetary union is not a debt union at the moment, but it is about to be moved to become a debt union. We have an opt-out for monetary union. If the monetary union becomes a debt union, and thus far more significant, surely that is important to us-even though we have an opt-out.

Photo of David Lidington David Lidington The Minister for Europe

If the measures in respect of greater economic union or perhaps fiscal union or shared responsibility for debts were to take the form of a European Union amendment treaty and involved the transfer of competences or powers from this country to the EU, the referendum lock would be triggered. If the eurozone countries choose to do their own thing and have their own intergovernmental treaty, which they can do quite distinct from any move to amend either the treaty on European Union or the treaty on the functioning of the European Union, we would not have a say-not if they chose to go down that route.

Photo of Stephen Dorrell Stephen Dorrell Chair, Health Committee

Were my right hon. Friend a Minister in one of those European Union countries that might theoretically be considering a fiscal union, and were he offered the prospect of his decisions on behalf of his country being subject to a referendum in the United Kingdom-a country that would not be part of that union-which of the two routes does he think that he might take?

Photo of David Lidington David Lidington The Minister for Europe

By implication, my right hon. Friend has answered his own question. There is a question about national sovereignty and democratic accountability. We would look askance were another EU member to say that some protocol that dealt with the United Kingdom alone should be subject to a referendum in their country. We should be pretty cautious before we set ourselves up and argue that we will insist that we hold a referendum here on a treaty proposal that does not have an impact on the governance of this country, that does not involve the transfer of new powers away from this country, and that leaves the powers of our Parliament and people completely as they are at present.

Several hon. Members:

rose -

Photo of David Lidington David Lidington The Minister for Europe

I will make some progress, because many Members have spoken and made different points, which I want to answer.

As the House knows, a new system for treaty change was introduced by Lisbon: the simplified revision procedure in articles 48(6) and (7) of the treaty on European Union. That enables the European Council to amend those sections of the treaty on the functioning of the European Union that concern the single market, justice and home affairs and other internal policies. The Bill ensures that the method of treaty change, governed by the simplified revision procedure, is subject to exactly the same accountability and scrutiny as the ordinary revision procedure. The only difference is the significance test, which I will cover in detail later. In passing, I should say that article 48(7) decisions about moving from unanimity to qualified majority voting are caught by clause 6(4)(b) of the Bill and require both an Act and a referendum in accordance with schedule 1.

My hon. Friend Mr Clappison was right when he said that article 48(6) says that the simplified revision procedure cannot be used to enlarge the competences of the European Union. Although that is indeed written in the treaty, we have drafted the Bill to require British Ministers to examine even an article 48(6) proposal, to see whether, despite that treaty language, we would judge it to involve an extension of competence. If the British Government's judgment was that it did, the referendum lock would apply in those circumstances.

Let me turn to the numerous amendments, many of which severely weaken the provisions of the Bill, either by watering them down so that they are toothless, or by extending them considerably beyond what the coalition programme for government promised. Amendments 67 and 68 would remove the referendum lock altogether, and require only an Act of Parliament to approve a transfer of power or competence from the United Kingdom to the European Union.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

That is not an entirely accurate representation of amendments 67 and 68, which refer only to changes under the simplified revision procedure.

Photo of David Lidington David Lidington The Minister for Europe

I was going to make the qualification that the amendment applies to measures within the simplified, not the ordinary, revision procedure. I think that that denies the public the chance to have their say on what are, ultimately, important decisions.

My hon. Friend the Member for Cheltenham asked a couple of detailed questions. He asked, for example, whether a technical change to allow for emergency flood relief, agreed to by means of the simplified revision procedure, would be subject to a referendum. As he will know, the so-called enabling clause, article 352, would be available in the event of a need to take urgent action within the European Union's existing competences if that action were taken to attain the EU's objectives and if there were no explicit provision to authorise that in the EU treaties, and emergency relief and international development are indeed competences that the European Union shares with member states. Clause 8 of the Bill provides for enhanced parliamentary controls prior to any agreement on the use of article 352.

I disagree with the hon. Gentleman on some of what he termed technical changes. I firmly believe that a referendum should be held on any change that would transfer competence or substantive power from this country to the EU permanently.

The hon. Gentleman also asked how many article 48(6) changes were currently being considered. Only one is being considered at present, the one that was promoted by the German Government and agreed at the December European Council. It affects only the eurozone, and as it does not transfer power or competence from this country to the European Union, there would be no need for a referendum.

Amendments 1 to 5 and amendment 7 would ensure that every treaty change required the consent of the British people in a referendum, even if it transferred no further competence or power from this country to Brussels. I suspect that this was not the authors' intention, but even a treaty change that would repatriate power from the European Union to the United Kingdom would require a referendum in this country before it could be accepted. A treaty change to remove the United Kingdom's veto over decisions to amend the number of advocates-general working in the European Court of Justice would require a referendum, as would a treaty change to allow Denmark to participate in justice and home affairs measures. The addition of 18 new MEPs before 2014-when they take their seats automatically anyway-for which the Bill provides would also require a referendum.

The issue is this: what is a suitable matter for a referendum? I believe that decisions that change who decides-decisions that move control over an area of policy from the United Kingdom to the EU-should require the consent of the British people; but not every treaty does that. Should a technical change such as the temporary alteration in the number of MEPs require a referendum? If Iceland decided to join the EU, should that require a national referendum? I think that that argument is very hard to justify, and might well discredit the principle of referendums from the point of view of voters. I also see no justification for referendums on treaty changes that do not apply to the United Kingdom. As I said earlier, in democratic terms, those are ultimately decisions for the countries to which the treaties apply, and not for us. No transfer of competence or of power from this country to the EU is associated with such changes.

Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

The Minister is simply wrong. If Lisbon caps the total number of MEPs, if the number of MEPs is based on the population, if there is a minimum number of MEPs with "bookends", and if a country such as Turkey makes a change, the number of MEPs in this country will be significantly lower and our voice will be lower. That constitutes a change of power, and it is no good denying it.

Photo of David Lidington David Lidington The Minister for Europe

If we followed the hon. Lady's logic, a referendum would be required in this country for any change whatsoever in the distribution of seats in either the European Parliament or the Council of Ministers.

By definition, a referendum in this country would also be required on any accession to the European Union, not just that of Turkey, because every time a new member state joined the European Union they would have a certain weighted share of votes in the Council of Ministers and a certain number of MEPs. I do not think that she is seriously arguing that.

The hon. Lady and other hon. Members honed in on the question of Turkey's accession, saying that the size of that country's population made it a different case. That is not as straightforward an argument as she and others make out, because there have been occasions when a number of different accessions have taken place at the same time. A few years ago, 10 new member states joined the European Union at the same time. I believe that their combined population then was 73 million, which is slightly greater than Turkey's population is now. I do not believe that anybody in this country argued at that time that a British referendum on those accessions was right. The point of principle here is that a referendum should be required when new competences or powers are given from the United Kingdom to the European Union. If Parliament wants to impose the additional requirement for a referendum to be held on a treaty change, including an accession treaty, Parliament is perfectly entitled to do so when the ratification Bill comes along.

Photo of James Clappison James Clappison Conservative, Hertsmere 9:45 pm, 24th January 2011

The Minister is making a persuasive argument in a courteous way, but I must take him up on this point about the accession treaty. I believe that eight members joined at the same time and what took place then was in many respects a shambles, which would have been avoided by better scrutiny and if the question of a referendum had been on the table.

Photo of David Lidington David Lidington The Minister for Europe

I am going to stick to my figure of 10. It does not make much difference to the principle of the argument, but I believe my figure is accurate. My hon. Friend rightly made a point about problems after some of those accessions, but that makes the case for member states to insist on the rigorous application of the accession criteria before accession takes place, rather than allowing countries in before they are fully ready and equipped and then arguing about it afterwards.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee

The Minister is absolutely right on this point and my hon. Friend Ms Stuart is wrong, because in the case in question the enlargement of the European Union passed the House unanimously. The only occasion when a matter such as enlargement should go to the British people is when the House decides that it should go to them.

Photo of David Lidington David Lidington The Minister for Europe

I am grateful to the right hon. Gentleman for that.

I wish now to discuss the significance test. New clause 9 would submit all referendum criteria, all treaty changes and all uses of article 48(6) to a significance test, but even the narrow use of the significance test, as set out in the Bill, has been the subject of a great deal of concern, so I wish to be clear about what it means for the Bill as it stands and to explain why it is needed. The significance test can be used only in very specific circumstances. Clause 4 identifies 13 instances when a treaty change transferring competence or power to the EU would attract a referendum. The significance test applies not to 13, but to two of those instances. Moreover, it can be used only when a decision under article 48(6) is being taken. It cannot be used for treaty amendments adopted under the ordinary revision procedure.

Article 48(6) decisions could seek to confer on a European institution a power to require this country to act in particular way, or to impose sanctions on the UK for our failure to act in a particular way. Although that could be done only within existing areas of competence, and not within new ones, it would enable EU institutions or bodies to use those existing competences in a different way. A future proposal under article 48(6) to do either of these things would, as a matter of general principle, require a referendum to be held.

Let me give the Committee a hypothetical example. There might be a proposal to allow an EU agency to impose sanctions on a national regulator or to act in a way that compelled British businesses to do something that would increase significantly the burdens on British business and harm the competitiveness of this country. That sort of decision would, in my view, be classed as significant and should attract the referendum lock, but there might equally be instances in the future-the hon. Member for Cheltenham was right-where article 48(6) might be used to give a new power to a body in an area that is not significant to this country. For example, it might require a national regulator or some other British organisation to provide an EU agency with a set of statistics annually.

Let us consider, for example, the European Maritime Safety Agency. It was set up to provide member states of the Commission with technical and scientific assistance in the field of maritime safety and the prevention of pollution by ships. If, in the future, it was decided to change the treaty so that that agency could issue binding directions to national regulators and that that would be a permanent cession of authority and powers, that would be a significant power within the meaning of clause 4(1)(i) or (j). If, however, the proposal was to change the treaty to allow the agency to require national regulators to provide it with an annual digest of statistics, I do not think that that would be a significant power under the Bill. That is why we have provided for the significance test.

Amendments 3 and 5 would remove the significance condition from the Bill, so it would in practice require a national referendum on such things as the provision of statistics. I think that most people in this country would accept that such technical changes should be left to the Government, under the scrutiny of Parliament, who of course would still have to authorise the minor treaty change through primary legislation-a formal Act of Parliament subject to detailed scrutiny and capable of amendment in either House. In all those instances the proposal would need to be thoroughly analysed and we have ensured that any use of the significance test would be subject to strong scrutiny and accountability.

When he spoke about amendment 11, my hon. Friend the Member for Hertsmere took a different approach to parliamentary scrutiny. His amendment would require a Minister to seek parliamentary approval not to hold a referendum on the basis of the significance test, through both Houses agreeing to a motion without amendment. I have a great deal of sympathy for where my hon. Friend is coming from and I do not for one moment challenge his passionate commitment to the duty of Parliament to hold Ministers to account or his wish to see the powers of Parliament over European Union business and ministerial decisions on Europe strengthened and improved. If I felt that his amendment would secure that objective better than the provisions in the Bill, I would be with him on the detail. However, I want to explain why I do not believe that it does that.

First, when a Minister makes the statement required by clause 5 on whether a proposed amendment requires a referendum, they must give reasons why the proposed change does or does not meet the significance test. Those reasons will need to refer to the criteria set out in clause 4, so their reasoning will need to be clearly set out. There is a first measure of protection already in the Bill.

Secondly, the Bill ensures that every proposed treaty change, regardless of whether the significance test applies, would require the approval of Parliament through primary legislation. That would allow sufficient time for Parliament to scrutinise the use of the test to legislate for a referendum if it deemed such a provision necessary.

Thirdly, there is the risk that having a separate debate on significance in the way that amendment 11 proposes could weaken Parliament's scrutiny of the primary legislation that the Bill requires. That point was made by my hon. Friend Jacob Rees-Mogg in an earlier intervention. In view of the dynamic of the House of Commons, it would be tempting for a Government who wanted to rush through a particular treaty change to schedule an early debate on the motion not to require a referendum and then, when the ratification Bill came forward and Members of Parliament had had the opportunity to look at the detail, perhaps consider the evidence of a Select Committee, and listen to what outside experts had to say on the matter, they would find their Whips coming up and saying, "We've already voted on this. You personally went through our Lobby to support the proposition that a referendum was not required. How can you change your mind and try to insert the requirement for a referendum at this stage?"

The unintended consequence of amendment 11 could be to strengthen the hand of the business managers and to weaken the independence of judgment that Members would be able to exercise under the requirement for primary legislation laid out in the Bill. Amendment 11 would also weaken any prospect of a successful judicial review. Judicial review is not a panacea, but the House should see it as a significant step to give the citizen the right to challenge a Minister's decision, where that decision is irrational or unreasonable.

There are two important distinctions between what we are proposing here and what we saw in the Wheeler case, to which a number of Members referred in the debate. First, the Minister has to give reasons, and give reasons by reference to the Bill. That opens up the possibility that a court might wish to consider a challenge to the reasonableness of the Minister's decision. Secondly, whereas in Mr Wheeler's case the Court was invited to judge the wording of the constitutional treaty against the wording of the treaty of Lisbon and declined to do so, in this case we are talking about a possible invitation to the Court to judge the actions and decision of a Government Minister in his Executive capacity against the statutory duties on that Minister set out in the language of the Bill. Those are important distinctions.

Photo of David Lidington David Lidington The Minister for Europe

No. I want to do justice to the amendments tabled by the Opposition. They have been presented as increasing the role of Parliament. In fact, they do the reverse. The effect of the Opposition amendments, especially new clause 9, is to subject every referendum criterion to a significance test. If accepted, the Opposition's amendments would leave it open as to whether a move to join the euro was significant, a move to give new competences to the European Union was significant, a move to give up our border controls and take part entirely in a European immigration system was significant, or a move to join a European public prosecutor system was significant.

Mr David is trying to persuade us that he is offering new powers to Parliament, when it is clear to anybody who studies the wording of his amendments and his new clause that the intentions are the reverse. The Opposition's amendments would drive a coach and horses through the Bill. They would deny both Parliament and the people the additional powers and controls which I believe Parliament and people in this country want to see. The Bill is designed to be tough. As academic experts have said when giving evidence to the European Scrutiny Committee, it delivers the referendum lock that we have promised. I will not yield by weakening the Bill in the way that the Opposition propose.

Question put, That the amendment be made.

The Committee divided: Ayes 220, Noes 329.

Division number 179

See full list of votes (From The Public Whip)

Question accordingly negatived.

Proceedings interrupted (Programme Order, 7 December).

The Chair put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).

Clause 1 ordered to stand part of the Bill.

Clauses 2 to 4 ordered to stand part of the Bill.